Summary
In S. v. Nash, 86 N.C. 650 (651), we find: "To support a plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction, but they must be for the same offense; the same, both in fact and in law."
Summary of this case from State v. PierceOpinion
(February Term, 1882.)
Assault Upon Several Is an Assault Upon Each — Former Acquittal.
1. An indiscriminate assault upon several persons is an assault upon each individual.
2. To support the plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction, but they must be for the same offence, both in law and in fact — an exact and complete identity of the two offences charged.
INDICTMENT for assault and battery tried at Fall Term, 1881, of RICHMOND Superior Court, before Graves, J.
Attorney General, for the State.
Messrs. Burwell Walker, for defendant.
(MR. JUSTICE ASHE, dissenting.)
The defendant was indicted for an assault and battery committed upon one Nathan Reynolds, and for his defence relied upon the plea of former acquittal. The jury returned a special verdict as follows: "That the defendant was indicted at the present term of this court for an assault on one Atlas Spivey, and upon that trial the state showed in evidence that on the 23rd day of December, 1879, the said Atlas Spivey and Nathan Reynolds, and some eighteen more persons, went to the defendant's house with guns, bells, horns, and tin pans, and marched around the house, and when about to leave fired off the guns; and that the defendant thereupon fired a gun at them and in direction of the crowd, twice, in rapid succession, and one shot struck the said Spivey; and that upon such trial the defendant was acquitted by the jury; and further, that the evidence in the present indictment is to the same acts of the defendant, and that the said Nathan Reynolds was stricken by a shot from the defendant's gun fired as aforesaid. If in law these facts amount to a (651) former acquittal, then the jury find in favor of the defendant; but if in law they do not amount to a former acquittal, then they find that he was not formerly acquitted."
His Honor, being of opinion with the defendant, rendered judgment accordingly, and the solicitor for the state appealed.
To support a plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction; but they must be for the same offence; the same, both in fact and in law. See note to 1st Bennett and Heard's Leading Crim. Cases, 522.
In the principal case of Rex v. Vandercomb, 516, there referred to, and which was argued, as stated by Mr. Justice BULLER, before all the judges of England, it was held, that unless the first indictment were such, as that the defendant might have been convicted upon it by proof of the facts contained in the second, then, an acquittal on the former can be no bar to a prosecution for the latter. In State v. Jesse, 20 N.C. 95, it was said by this court, in discussing the very point, that two offences may have several circumstances in common, and yet to constitute either some other circumstance is to be added; and it is the allegation on the record of this additional circumstance, peculiar to each, which constitutes them distinct crimes; and therefore it is not always sufficient to make a judgment on an indictment for one a bar to an indictment for the other, that the same evidence may be competent and material to both. The true test is as stated in Rex v. Vandercomb: Could the defendant have been convicted upon the first (652) indictment upon proof of the facts, not as brought forward in evidence, but, as alleged in the record of the second.
Upon this principle it was, that the court of King's Bench held in Rex v. Taylor, 3 B. and C., 502, that if it appeared manifest to the court, from the inspection of the two indictments, that the offences charged could not be the same, the defendant could not by averment show them to be the same, because that would be to contradict the record.
Now to apply this principle to the present case: The first indictment was for an assault on one Spivey; could the defendant have possibly been convicted thereof upon proof of the averments contained in the record of the second, to wit, of an assault upon the prosecutor Reynolds?
A battery is violence done to the person of another, and though there be but a single act of violence committed, yet if its consequences affect two or more persons, there must be a corresponding number of distinct offences perpetrated. Accordingly it has been held that an acquittal on a charge of attempting to poison A, was no bar to an indictment for attempting to poison B, although on the same occasion and by the same act of preparation, because in such case, it was said, there were two distinct offences. People v. Warren, 1 Parker C. C., 388. In like manner it was held in State v. Standifer, 5 Porter, 523, that if one commit an assault by one stroke upon two persons, a conviction or acquittal upon an indictment alleging the assault upon one, was no bar to a subsequent prosecution for the assault on the other. And still more to the purpose was the ruling of our own court in State v. Merritt, 61 N.C. 134, to the effect, that an indiscriminate assault upon several persons was an assault upon each and every one of them.
It is true that a decision to the contrary of this was rendered by the court of Vermont in State v. Damon, 2 Tyler, 390; but it is said in a note to Archbold's Criminal Pr. and Pl., 112, to be against the weight of authority and repugnant to reason, and by Bennett and Heard, 534, to be clearly not law. (653)
The decision in State v. Jesse, supra, has been twice approved by the court (State v. Birmingham, 44 N.C. 120, and State v. Revels, Ib., 200,) and the principle upon which it proceeded is clearly asserted in many of the elementary writers on criminal law, (1 Chitty, 457; 2 East, P. C., 519; 1 Wharton, 505,) and as it seems to us is easily distinguished from the State v. Town of Fayetteville, 6 N.C. 371, where the conduct complained of was one of mere neglect, and the omitted duty of keeping the streets in repair was an entire one, not susceptible of division into parts, so that each may become the subject of a prosecution.
How can it be certainly known what motive induced the verdict of acquittal in the former trial? For aught that can be seen, the jury in that case may have wholly disbelieved the evidence as to Spivey's being stricken, or even as to his being one of the company fired upon. If so, then clearly the verdict should not stand in the way of a prosecution for the battery upon one who was present and who was actually injured. It is true the last verdict establishes the fact both of his presence and the injury done him, but in the case supposed, which are we to adopt — the former or the latter finding? No such difficulty can arise in the case of two prosecutions for the same identical act, for then the first verdict will conclude as to the truth of every matter necessary to support it, and will draw to it every intendment as well of law as of fact — a thing that cannot be done in favor of two contradictory verdicts.
The only safe rule is to stand by the decisions of our courts, and to hold that the plea of former acquittal cannot avail, unless there should be an exact and complete identity in the two offences charged.
Our conclusion therefore is that the plea relied on was not a bar to the pending prosecution against the defendant, and the state was entitled to judgment upon the special verdict. (654)
The judgment below is reversed, and this opinion will be certified.