Jones v. State , 66 Miss. 380 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

If the defendant while engaged in a difficulty with Lloyd and Thomas unlawfully struck each of his adversaries, he was subject'to conviction for each offense, and a conviction for one would not bar a conviction for the other. So also if while engaged in a difficulty with Lloyd he lawfully struck him, but in the same fight also unlawfully struck Thomas, an acquittal of the charge preferred against him for striking Lloyd would not protect him from a prosecution for the unlawful striking of Thomas. Teat v. The State, 53 Miss. 439.

So long therefore as the state, in the prosecution of the indictment against the accused for the assault upon Thomas, confined the issue to the independent act of that assault, it was incompetent for the defendant to introduce in evidence the record of the proceedings iu the indictment against him for the assault upon Lloyd, upon which he had been acquitted. The acquittal was not a bar to the second prosecution, nor was it competent evidence to prqve that assault and battery on Thomas was justifiable.

But by the eighth instruction asked and obtained by the staté, the jury was told that if the defendant while engaged in a fight ■with Lloyd, struck Thomas, believing him to be Lloyd, and that Thomas was at the time doing no act to justify the battery, then the defendant was guilty of an assault and battery on Thomas, and the jury should so find. Ordinarily the instruction would be a correct announcement of the law. If “ A,” intending to strike “ B,” misses him and strikes “ C,” or, if mistaking “ C ” for “ B,” he strikes him, he is in either case guilty of an assault and battery on “ C.” But this is because the act of striking is unlawful, and “A” would have been guilty of a battery in either instance if he had in fact struck “ B ” and not “ C.”

An act, however, which is lawful in itself cannot be made the foundation of a criminal prosecution because of its consequences. There may be instances in which an act otherwise lawful may be criminal because of the circumstances under which it is done. One may fire a gun in a wilderness and if by chance another is there and is injured, the actor is not guilty of any crime; but if the gun be fired in a populous town, the carelessness, negligence, or recklessness of the act makes it unlawful and subjects the actor to punishment, but in such case the act itself is unlawful.

The accused had been indicted, tried, and acquitted for an assault and battery upon Lloyd with a deadly weapon, with intent to kill and murder him. . Under that indictment he might have been convicted of the offense charged, or of an assault and battery, or of a simple assault. Wood v. The State, 64 Miss. 761.

And under such circumstances an acquittal under the indictment for the principal offense, bars a subsequent prosecution for any of its ingredient offenses. Moore v. The State, 59 Miss. 25.

The record of his former acquittal under the indictment for the felonious assault upon Lloyd was conclusive evidence of the fact that the accused was not guilty of any offense by reason of any assault or assault and battery upon Lloyd. Crum v. Wilson, 61 Miss. 233. If the force directed against Lloyd was not unlawful, there was no.assault or battery. 2 Bishop on Crim. Law, § 37.

The evidence is of a fight at night between Lloyd and the accused, in which Thomas, according to the state’s theory, intervened as a peacemaker, but according to the evidence for the defendant he took part in the fight against the defendant. Under the circumstances disclosed by the recox’d, whether the state’s evidence or that of the defendant be accepted as true, the defendant having by the verdict in the first indictment been justified in what he did as against Lloyd, is protected against a conviction based upon any violence used against Lloyd, or against another whom he injured believing him to be Lloyd.

The case presents the first instance of which we are informed in which evidence incompetent when offered is made competent by the subsequent act of the state by its instructions. It would be a failure of justice if the state should be permitted to exclude such evidence as incompetent upon the theory that it was proceeding against him for an independent act, and then having succeeded in excluding the testimony, to abandon its position and secure a conviction upon facts which the proffered testimony would have conclusively disproved.

The judgment is reversed and c.ause remanded.