Mr. Justice Burnett
delivered the opinion of the Court.
This appeal comes from the conviction of possessing more than three gallons .of unstamped liquor. The punishment was fixed at a penitenitary sentence of two years.
Officers of Fentress County raided the premises of the plaintiff in error and found a quantity of moonshine liquor concealed under the hoods of two automobiles which were nearby. These officers had a search warrant for this place before they made the raid, no question is made about the warrant. Seven and one-half gallons of the whisky were found under the hood of a 1940 Chevrolet, and two and one-half gallons were found under the hood of an old 1937 Chevrolet. One of the officers had previously seen the plaintiff in error driving the 1940 Chevrolet. When the plaintiff in error was arrested he [53]*53asked these officers how much liquor they found and when they said 10 gallons he disputed this and said that he did not have that much liquor. The hood of the 1940 Chevrolet was warm and the plaintiff in error told one of the officers that he had just driven it. There is no proof offered on behalf of the defense.
The principal insistence on this appeal, which is made in a very able and vigorous oral argument to this Court, is that the trial court committed error in overruling a plea of former jeopardy. In support of this plea the following facts appear: Davis had previously been indicted for the identical offense for which he is here convicted, except that in the former indictment the charge was the possession of untaxed whisky, while in the present indictment it was averred that the whisky was unstamped. He was put on trial under this first indictment, found guilty, and sentenced by a jury to a term of two years in the penitentiary. Seasonably to this conviction he filed a motion for new trial on the grounds that the evidence did not support the verdict, that the preponderance of the evidence was in favor of his innocence, and that he was convicted of a felony although the indictment only charged a misdemeanor. The trial court sustained this motion for new trial without definitely stating why it was sustained. Subsequently the plaintiff in error was again indicted for the possession of this same whisky and before the trial came on on this subsequent indictment, that is, the one that we now have before us, a nolle prosequi was entered by the District Attorney in the first case, that is, the case that he had been convicted in and the new trial granted in.
It is very vigorously contended under this state of facts that Davis had been put in double jeopardy. He relies primarily upon our case of State v. Norvell decided at [54]*54Rogersville in May, 1820, 10 Tenn. 24, 24 Am. Dec. 458, wherein this Court at that time held that a defendant could not be prosecuted ag’ain after he had once been convicted and the judgment arrested. It seems to us that this case is not in point. In the Norvell case, the indictment was for murder and the conviction was of manslaughter. The Court held there that the manslaughter verdict was an acquittal of the charge of murder, which could be pleaded in bar to a subsequent indictment for 'murder.' This Norvell case also plainly is not controlling because it appears in this case that the State; though it might have, failed to appeal from an order of the trial court in sustaining a motion in arrest. The court seenis to have completely ignored the point or it was not mentioned in the opinion that a defendant, who, upon his own motion, extricates himself from jeopardy will not be permitted to take advantage in a subsequent trial of the court’s action in the removal of the jeopardy from him.
(1) “ It is an established principle of law that an accused in a criminal case who procures a verdict and judgment against him to be set aside or arrésted by the court may be tried anew upon the same or another indictment for the same offense of which he was convicted, even after he has served a part of the sentence imposed on him in the first conviction. * # *
(2) “Where a new trial was granted on motion of accused, and the verdict and conviction are set aside, he thereby waived his right and is estopped to. plead the former conviction as a bar to another trial on the same or a new indictment. ” 22 C. J. S.,
. Criminal Law, Secs. 271 and 272.
To the same effect see 15 Am. Jur., Sec. 427, page 89, where cases from practically every State in the Union [55]*55will be found. Our case of Slaughter v. State, 25 Tenn. 410 is in accord with, this general rule. '
See also an opinion of this 'Court on the subject in Etter v. State, 185 Tenn. 218, 205 S. W. (2d) 1, 4, where this Court made a statement which is here applicable to wit:
“How can the accused say he has been injured, that any injustice has been done? We frankly cannot see how. At the succeeding term he clearly had all rights that he originally had in the selection of a new jury. He was not prejudiced by the evidence of the prosecution which had been introduced. The fact is he should be materially benefited. Then too, we know that ordinarily the longer a trial of the kind is postponed, the better for the accused. ’ ’
In the instant case counsel for the plaintiff in error argue that the plea of former jeopardy would not have been good under the decisions of this Court if the accused had been proceeded against under the old indictment but they say that when the prosecution took a nolle prosequi in that indictment and commenced a new proceeding that then this plea of former jeopardy is good.
We cannot agree with this argument. This Court in Holder v. State, 143 Tenn. 229, 227 S. W. 441, 442, held that an indictment may not be recommitted to a grand jury for amendment at a subsequent term but that at this the subsequent term when it was found that the indictment issued at a former term was defective a new indictment might be procured from the grand jury and that before the trial on it a nolle .prosequi could be entered on the first indictment. This Court in the Holder case used this very apt language: . . .
“In a criminal action, if a.defendant is not allowed to plead in abatement that another action is pending for the same offense, then in the case under con[56]*56sideration the state could have gone to trial on tlie second indictment without having first disposed of the first. If both indictments charge the same offense, the defendant, of course, could not be tried on the first indictment after a trial had been had on the second, for that would be to put him twice in jeopardy. We are unable to see how the defendant would be prejudiced where he is tried only one time on a valid indictment for a particular offense.
‘ ‘ * * * In the instant case the defendant was not so discharged, but was held until another indictment was returned. In fact, the trial judge did not quash the first indictment until the second indictment had been returned, and he required the defendant to enter into a recognizance * * #.
“Under the foregoing facts, we are of the opinion that the trial judge did not violate the act in question in quashing the first indictment.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Burnett
delivered the opinion of the Court.
This appeal comes from the conviction of possessing more than three gallons .of unstamped liquor. The punishment was fixed at a penitenitary sentence of two years.
Officers of Fentress County raided the premises of the plaintiff in error and found a quantity of moonshine liquor concealed under the hoods of two automobiles which were nearby. These officers had a search warrant for this place before they made the raid, no question is made about the warrant. Seven and one-half gallons of the whisky were found under the hood of a 1940 Chevrolet, and two and one-half gallons were found under the hood of an old 1937 Chevrolet. One of the officers had previously seen the plaintiff in error driving the 1940 Chevrolet. When the plaintiff in error was arrested he [53]*53asked these officers how much liquor they found and when they said 10 gallons he disputed this and said that he did not have that much liquor. The hood of the 1940 Chevrolet was warm and the plaintiff in error told one of the officers that he had just driven it. There is no proof offered on behalf of the defense.
The principal insistence on this appeal, which is made in a very able and vigorous oral argument to this Court, is that the trial court committed error in overruling a plea of former jeopardy. In support of this plea the following facts appear: Davis had previously been indicted for the identical offense for which he is here convicted, except that in the former indictment the charge was the possession of untaxed whisky, while in the present indictment it was averred that the whisky was unstamped. He was put on trial under this first indictment, found guilty, and sentenced by a jury to a term of two years in the penitentiary. Seasonably to this conviction he filed a motion for new trial on the grounds that the evidence did not support the verdict, that the preponderance of the evidence was in favor of his innocence, and that he was convicted of a felony although the indictment only charged a misdemeanor. The trial court sustained this motion for new trial without definitely stating why it was sustained. Subsequently the plaintiff in error was again indicted for the possession of this same whisky and before the trial came on on this subsequent indictment, that is, the one that we now have before us, a nolle prosequi was entered by the District Attorney in the first case, that is, the case that he had been convicted in and the new trial granted in.
It is very vigorously contended under this state of facts that Davis had been put in double jeopardy. He relies primarily upon our case of State v. Norvell decided at [54]*54Rogersville in May, 1820, 10 Tenn. 24, 24 Am. Dec. 458, wherein this Court at that time held that a defendant could not be prosecuted ag’ain after he had once been convicted and the judgment arrested. It seems to us that this case is not in point. In the Norvell case, the indictment was for murder and the conviction was of manslaughter. The Court held there that the manslaughter verdict was an acquittal of the charge of murder, which could be pleaded in bar to a subsequent indictment for 'murder.' This Norvell case also plainly is not controlling because it appears in this case that the State; though it might have, failed to appeal from an order of the trial court in sustaining a motion in arrest. The court seenis to have completely ignored the point or it was not mentioned in the opinion that a defendant, who, upon his own motion, extricates himself from jeopardy will not be permitted to take advantage in a subsequent trial of the court’s action in the removal of the jeopardy from him.
(1) “ It is an established principle of law that an accused in a criminal case who procures a verdict and judgment against him to be set aside or arrésted by the court may be tried anew upon the same or another indictment for the same offense of which he was convicted, even after he has served a part of the sentence imposed on him in the first conviction. * # *
(2) “Where a new trial was granted on motion of accused, and the verdict and conviction are set aside, he thereby waived his right and is estopped to. plead the former conviction as a bar to another trial on the same or a new indictment. ” 22 C. J. S.,
. Criminal Law, Secs. 271 and 272.
To the same effect see 15 Am. Jur., Sec. 427, page 89, where cases from practically every State in the Union [55]*55will be found. Our case of Slaughter v. State, 25 Tenn. 410 is in accord with, this general rule. '
See also an opinion of this 'Court on the subject in Etter v. State, 185 Tenn. 218, 205 S. W. (2d) 1, 4, where this Court made a statement which is here applicable to wit:
“How can the accused say he has been injured, that any injustice has been done? We frankly cannot see how. At the succeeding term he clearly had all rights that he originally had in the selection of a new jury. He was not prejudiced by the evidence of the prosecution which had been introduced. The fact is he should be materially benefited. Then too, we know that ordinarily the longer a trial of the kind is postponed, the better for the accused. ’ ’
In the instant case counsel for the plaintiff in error argue that the plea of former jeopardy would not have been good under the decisions of this Court if the accused had been proceeded against under the old indictment but they say that when the prosecution took a nolle prosequi in that indictment and commenced a new proceeding that then this plea of former jeopardy is good.
We cannot agree with this argument. This Court in Holder v. State, 143 Tenn. 229, 227 S. W. 441, 442, held that an indictment may not be recommitted to a grand jury for amendment at a subsequent term but that at this the subsequent term when it was found that the indictment issued at a former term was defective a new indictment might be procured from the grand jury and that before the trial on it a nolle .prosequi could be entered on the first indictment. This Court in the Holder case used this very apt language: . . .
“In a criminal action, if a.defendant is not allowed to plead in abatement that another action is pending for the same offense, then in the case under con[56]*56sideration the state could have gone to trial on tlie second indictment without having first disposed of the first. If both indictments charge the same offense, the defendant, of course, could not be tried on the first indictment after a trial had been had on the second, for that would be to put him twice in jeopardy. We are unable to see how the defendant would be prejudiced where he is tried only one time on a valid indictment for a particular offense.
‘ ‘ * * * In the instant case the defendant was not so discharged, but was held until another indictment was returned. In fact, the trial judge did not quash the first indictment until the second indictment had been returned, and he required the defendant to enter into a recognizance * * #.
“Under the foregoing facts, we are of the opinion that the trial judge did not violate the act in question in quashing the first indictment. To hold otherwise, as previously stated, would be to deny the right of the state to have a defective indictment corrected when such defect was discovered at a term subsequent to that at which the indictment was found.”
The contention is also made in the brief, although it was not argued at the bar, that the evidence preponderates against the verdict. All that needs to be said in answer to this is what we pointed out at the beginning of this opinion, that is that this whisky was found there in the cars of the plaintiff in error and that he argued with the officers about the amount (of course this in effect is conceding that it was his whisky) and the fact that there is no testimony to the contrary. Of course this assignment too must be overruled. This has been a rather interesting case and after a thorough consideration, for the [57]*57reasons stated herein, the judgment below must he affirmed.
The record fails to show that the plaintiff in error was ever sentenced according to the verdict of the jury but it does indicate that there is a partial sentence as shown by the minute entry. Under the authority of Brooks v. State, 156 Tenn. 451, 2 S. W. (2d) 705, it is within onr province to pronounce a proper judgment. The judgment of the trial court must thus be affirmed.