Opinion
No. 40294.
December 10, 1956.
1. Criminal law — order entered in Justice of the Peace Court — did not support plea of former jeopardy in bar of conviction and sentence on same charge in Circuit Court.
Order entered in Justice of the Peace Court, reciting appearance of defendant for trial on charge of assault, failure of prosecution to appear with any evidence and that case was thrown out of court for want of prosecution, showed that defendant had not been prosecuted or put in jeopardy in Justice of the Peace Court on assault charge and did not support plea of former jeopardy in bar of conviction and sentence on same charge in Circuit Court.
2. Assault and battery — evidence — presented issue for jury.
In prosecution for assault, conflicting evidence presented a typical issue for jury to decide.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Newton County; W.E. McINTYRE, Judge.
Laurel G. Weir, Philadelphia; Frank F. Mize, Forest, for appellant.
I. The Lower Court erred in not permitting appellant to prove second jeopardy and erred in not sustaining his plea of second jeopardy. Henry v. State, 97 Miss. 787, 53 So. 397; Ex parte Grubbs, 79 Miss. 358, 30 So. 708, 12 Cyc., Sec. 1 p. 76; Smith v. State, 101 Miss. 853, 58 So. 539; State v. Ireland, 89 Miss. 763, 42 So. 797.
II. Under the State's evidence on the matter, the plea of former jeopardy should have been sustained, even though the Court did not permit defendant to go into the matter as a defense.
III. When defendant filed the plea, he had a right to go into the matter as a defense, rather than the State bringing it up before trial on its motion.
IV. The Court erred in refusing to grant defendant a continuance. Walton v. State, 87 Miss. 296, 39 So. 689; Knox v. State, 97 Miss. 523, 52 So. 695; Walker v. State, 129 Miss. 449, 92 So. 580; Scott v. State, 80 Miss. 197, 31 So. 710; Montgomery v. State, 85 Miss. 330, 37 So. 835; Bone v. State, 207 Miss. 20, 41 So.2d 347; Long v. State, 52 Miss. 23; Blakeney v. State, 228 Miss. 162, 87 So.2d 472; Sec. 2522, Code 1942.
V. The Court erred in refusing each and every instruction refused to defendant and in granting each and every instruction granted to the State, all as shown by the record and which was over the objection of the defendant. Henry v. State, supra; State v. Ireland, supra.
VI. The Court erred in refusing defendant's request for a directed verdict, and the verdict of the jury is contrary to the overwhelming weight of the evidence.
VII. The Court erred in overruling each and every objection offered by the defendant as shown by the record, and erred in sustaining each and every objection offered by the State, all as shown by the record.
VIII. The Court erred in not granting to defendant a mistrial and a new trial, since this very prejudicial error occurred at the very outset of the trial. Patton v. State, 209 Miss. 138, 46 So.2d 90; Raines v. State, 81 Miss. 489, 33 So. 19; Dabney v. State, 82 Miss. 252, 33 So. 973; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293; Baygents v. State, 144 Miss. 442, 110 So. 114; Irby v. State, 186 Miss. 161, 185 So. 812; Scarbrough v. State, 204 Miss. 487, 37 So.2d 748; Augustine v. State, 201 Miss. pp. 277, 731, 28 So.2d 243.
John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The Lower Court did not err in not permitting appellant to put on proof regarding second jeopardy in the trial on its merits and did not err in not sustaining appellant's plea of second jeopardy. Lovery v. State, 149 Miss. 635, 105 So. 759; Keene v. State, 194 Miss. 233, 11 So.2d 899.
II. The Court did not err in refusing to grant appellant a continuance. Goins v. State, 155 Miss. 662, 124 So. 785; Poole v. State, 229 Miss. 456, 90 So.2d 212; Woodruff v. State, 220 Miss. 24, 70 So.2d 58; Lee v. State, 22 Miss. 382, 70 So.2d 609; Bolin v. State, 209 Miss. 866, 48 So.2d 581; Parker v. State, 201 Miss. 579, 29 So.2d 910; Ellis v. State, 198 Miss. 804, 23 So.2d 688.
III. The Lower Court did not err in refusing the instruction refused appellant, and further that it did not err in granting the instructions which it granted to the State.
IV. The Trial Court did not err in refusing appellant's request for a directed verdict, and the verdict of the jury is not contrary to the overwhelming weight of the evidence.
V. The Court did not err in overruling each and every objection offered by appellant as shown by the record and did not err in sustaining each and every objection offered by the State, all as shown by the record.
(Hn 1) Appellant was indicted, tried and convicted in circuit court on a charge of assault. A previous prosecution for the identical offense had been instituted in the justice of the peace court, where the following order was entered: "The defendant did appear for trial but the prosecution did not appear with any evidence. The case was thrown out of court for want of prosecution." The justice of the peace testified without objection that he did not swear any witness and took no testimony, but we lay aside this testimony as if objection had been made and sustained. The order of the justice of the peace shows that appellant was not prosecuted in that court and appellant was not there put in jeopardy. The judgment entered by the justice of the peace was not sufficient to sustain the plea of former jeopardy relied upon by appellant in bar of the judgment and sentence in the present case. Keene v. State, 194 Miss. 233, 11 So.2d 899.
(Hn 2) A careful consideration of the other assignments of error reveals no reversible error. The conflict in evidence made a typical issue for the jury to decide.
Affirmed.
Roberds, P.J., and Hall, Kyle and Arrington, JJ., concur.