State v. Caldwell

67 Tenn. 576

Opinion

Freeman, J.,

delivered the opinion of the court.

Defendant, with a woman named Green, were jointly" indicted for open and notorious lewdness. The parties severed for trial, and the woman was acquitted. A plea was filed in bar to the further prosecution on the part of defendant on the ground that the acquittal of the woman operated as equivalent to an acquittal of the man, as the offense could only be committed by two persons. The plea was demurred to, but the demurrer overruled. The attorney-general declining to take issue on the plea, the defendant was discharged and the State appealed.

We think the court erred in refusing to sustain the demurrer. The State might fail to be able to make proof of the offense in the trial of one party from many causes, yet might be able to make proof on the trial of the other. We so held at Nashville some time since, and approve the holding. The acquittal of one could not show the other was not guilty.

Eeverse the judgment and remand the case to be further proceeded with.