Opinion
05-18-1906
STATE v. DOUGHERTY.
Daniel O. Hastings, Deputy Atty. Gen., for the State. John Biggs, for defendant
John W. Dougherty was indicted for larceny, and he moves to quash the indictment. Motion refused.
Argued before , and GRUBB and PENNEWILL, JJ.
Daniel O. Hastings, Deputy Atty. Gen., for the State.
John Biggs, for defendant
Indictments for larceny (Nos. 38 and 51, May term, 1906). The above-named defendant was indicted at this term for the larceny of certain goods, laid in the indictment as the property of "Joseph Bancroft's Sons' Company." At the trial the first witness produced by the state testified that he was not sure whether the corporate name of the owner of the property alleged to have been stolen was "Joseph Bancroft's Sons' Company" or "Joseph Bancroft & Sons' Company." The state then proved by the docket of certificates of corporations from the office of the recorder of deeds that the name of said corporation was "Joseph Bancroft & Sons' Company."
Mr. Biggs, for defendant, thereupon asked the court to instruct the jury to render a verdict of not guilty, on the ground of a fatal variance between the proof and the allegations in the indictment.
Deputy Attorney General Hastings, asked that a juror be withdrawn and the defendant held until he could be reindicted.
Mr. Biggs opposed this application as contrary to the general practice of the courts in criminal cases, contending that the defendant had been put on trial, and, as he could not be convicted under a defective indictment, he should be discharged.
Mr. Hastings contended that the mere swearing of the jury was not a trial, and that, as the first question asked of the first witness disclosed that the indictment was faulty in respect to the allegation of the name of the company whose property was alleged to have been stolen by the defendant, it was no hardship upon the defendant at this time, before any evidence going to the merits of the case had been given to the jury, to pass upon the fact whether or not the defendant was guilty, to withdraw a juror and ask that the defendant be held until reindicted.
LORE, C. J. Is your application to have a nolle prosequi entered?
Mr. Hastings: Yes, sir; I enter a nolle prosequi.
LORE, C. J. We think you are entitled to enter a nolle prosequi in this case. The better practice is generally to order the jury to return a verdict of not guilty. Let a nolle prosequi be entered.
Thereupon the Deputy Attorney Genera] framed a new indictment against the defendant, charging therein that the stolen articles were the goods and chattels of the "Joseph Bancroft & Sons' Company," which indictment was returned "A true bill" by the grand jury.
And on the 21st of the same month Mr. Biggs, for defendant, before the same court as above, moved to quash the indictment, on the ground that the defendant was put in jeopardy for the same offense in the case of the state against himself, being No. 38 to the May term, 1906; citing Heard's Criminal Pleading, p. 281; 1 Bishop, on Criminal Procedure, 960; U. S. v. Shoemaker, 2 McLean, 114, Fed. Cas. No. 16,279; State v. Connor, 45 Tenn. 311; People v. Barrett and Ward, 2 Caines, 305, 2 Am. Dec. 239; Commonwealth v. Tuck, 20 Pick. (Mass.) 356 (365); Mount v. State, 14 Ohio, 295, 302, 45 Am. Dec. 542; State v. Callcndine, 8 Iowa, 288 (290); Knox v. State, 89 Ga. 259, 15 S. E. 308; Blair v. State, 81 Ga. 628, 7 S. E. 855.
Deputy Attorney General Hastings replied, contending that the present indictment was a different one from the first indictment, the description of the company whose property was alleged to have been stolen being a different corporation from that laid in the first indictment, although the taking is averred in the same manner, and that the cases cited by the counsel for the defendant did not apply to the case at bar; citing in support of his right to reindict the defendant the following authorities: Bishop, Criminal Law, § 1052; Clark, Criminal Procedure, p. 389; Hite v. State, 9 Yerg. (Tenn.) 357; State v. Williams, 45 La. Ann. 936, 12 South. 932; Thompson v. Commonwealth (Ky.) 25 S. W. 1059; Commonwealth v. Clair, 7 Allen (Mass.) 525; People v. Warren, 1 Parker Cr. K. (N. Y.) 336; Commonwealth v. Wade, 17 Pick. (Mass.) 395, 400.
THE COURT held the matter under advisement until the 26th of May, and thereupon rendered the following decision:
LORE, C. J. A majority of the court, consisting of Judges GRUBB and PENNBWILL, are of the opinion that the defendant, Dougherty, was not in jeopardy under the original indictment within the contemplation of the Constitution of this state. I do not agree with that view, but it is the view of the majority of the court, and therefore the motion to quash is refused.