Moss v. State , 16 Ala. App. 34 ( 1917 )

There are no demurrers in the record assailing the pleas; hence assignments of error predicated on these rulings cannot be reviewed by this court. L. N. R. R. Co. v. McCool,167 Ala. 645, 52 So. 656; Wade v. State, 170 Ala. 33, 54 So. 171; Carland Co. v. Burke, 197 Ala. 435, 73 So. 10; 2 Mayf. Dig. 181, subd. 945.

On a plea of former jeopardy, the burden of proof is on the defendant to reasonably satisfy the jury of the truthfulness of the plea. The decisions as to the burden of proof in cases of self-defense do not apply to pleas of former jeopardy. Oakley v. State, 135 Ala. 34, 33 So. 693.

The defendant was entitled to, and in this case had, a separate trial on the issue tendered. Under the practice in this state, the issue is first submitted; and, if found against the defendant, the trial proceeds. The jury is selected to pass upon the issues in the case, and the plea of former jeopardy is one of the issues, and it is not necessary that a new jury should be drawn for the purpose of passing upon the other issues. Parsons v. State, 179 Ala. 23, 60 So. 864; Barber v. State, 151 Ala. 56, 64, 43 So. 808, and authorities there cited.

Upon the submission of the issue of former jeopardy as submitted to the jury, the defendant presented two theories, both of which are raised by charges asked in writing. The first theory is that the same shot that killed Cook killed Haggerty, and, if this is so, and the defendant had been tried and acquitted for the killing of Cook, then he must be acquitted for the killing of Haggerty. The court agreed with the defendant upon that theory, and charges were given by the court in line therewith. The second theory is that, whether the same shot killed both men or not, it was the same act in the same difficulty and in pursuit of the same purpose and intent; and, as the state could not be required to elect in the first trial as to which shot killed Cook, but considered and treated all four shots as one and the same transaction, by the same token, the defendant in this case must be permitted to treat all four shots as a part of his purpose and design and intent in defending himself in the difficulty with Cook which resulted in Cook's death.

It may be conceded — and it is the law — that where a man kills two men in quick succession with a formed design as to each man, it is two offenses. But where the killing is pursuant to and "is a continuation of the assault, and done under the impulse of the same design," it is but one act. It, therefore, follows, if Moss, without any design or intention, killed an innocent bystander while engaged in defending his own life or limb, under such circumstances as would justify him in so doing, and a court of competent jurisdiction had so held and acquitted him upon the charge, he cannot again be put in jeopardy for the same offense.

In the case of Ellis v. State, the defendant fired three separate shots. The defendant moved that the state elect for which of the shots it would prosecute; but the court said:

"The evidence tended to show that the three shots followed each other in instantaneous succession * * * and 'might justly be regarded as but a continuation of the assault and done under the impulse of the same design,' and in execution of the same intent." Ellis v. State, 105 Ala. 74, 17 So. 119.

In Meadows' Case, McClellan, C. J., says:

"There must be such immediate relation between the two acts of shooting as that the last can be said to be in a train of continuation of the first, actuated by a purpose which is common to both, and continuing accompanied by effort to effectuate it from and covering the first act to and embracing the second act." Meadows v. State, 136 Ala, 75, 34 So. 183.

It is true that the same person may at the same time and in the same transaction commit two or more distinct criminal offenses; as in an affray a person shoots and kills one person, and by a second act shoots and wounds another; but each act must necessarily separately have all the elements of a crime, and each must be a separate act. But if a person, by the act of defending himself, fires four shots as one continuing act with the same purpose and intent and at the same person, and in so doing accidentally kills an innocent bystander, he can only be tried for one offense.

It follows, therefore, that the charges predicated on this theory should have been given, and the court committed error in not so doing.

Under the views above set out, it also follows that the evidence necessary to a fixing of the identity of the former charge and the acquittal thereunder should have been admitted; and the exclusion of this testimony by the court was also error.

For the errors above pointed out, the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.