Carleton Harris, Chief Justice.
The issue in this case is whether appellant, Dennis Turner, who was tried and acquitted of first degree murder can now be charged and tried for robbery which arose out of the same act. The appellant was charged by the filing of an Information with “willfully, feloniously and violently taking from the person of Larry Wayne Yates, on the 25th day of December, 1968, a sum of money in excess of $300.00 in currency, forcibly and against the will of said Larry Wayne Yates, by intimidating and putting in fear the said Larry Wayne Yates- and while perpetrating robbery, Defendant Dennis Turner did feloniously, willfully, and with malice aforethought, and with premeditation and deliberation, did kill and murder Larry Wayne Yates with a gun # # * in violation of Arkansas Statute 41-2205.”
Appellant was acquitted of murder by a jury on April 24, 1969, and was charged by a grand jury indictment on October 3, 1969, with the crime of robbery. The appellant sought dismissal of the indictment on the grounds that it constituted double jeopardy, and res judicata. The court denied appellant’s motion to dismiss and granted him this appeal. For reversal appellant contends that the doctrines of double jeopardy and res judicata preclude a relitigation of the issue of robbery between the state and the appellant, i iw points are asserted for reversal, but all relate to these two issues.
On appeal it is stipulated: “That the murder charge, of which Defendant Dennis Turner was acquitted, and the robbery charge arose out of the same set of facts, circumstances, and on the same occasion.-
“That the same testimony adduced by the State of Arkansas in the murder trial will necessarily need be reintroduced in this robbery charge.”
The information accusing the appellant with murder was two-pronged: (1) that the murder was committed in perpetration of the crime of robbery and (2) that appellant committed the murder “feloniously. willfully, and with malice aforethought, and with premeditation and deliberation.” This is permissible by Ark. Stat. Ann. § 41-2205 (Repl. 1964) which is our felony-murder statute.
We disagree with appellant’s contentions that the indictment should be dismissed on the principle of double jeopardy. This question was discussed in the Washington case of State v. Barton. 105 P. 2d 63, and also in the Idaho case of State v. Hall, 383 P. 2d 602. Both Barton and Hall had been accused of murder in the first degree, it being alleged that each killed a person while engaged in the perpetration of the crime of. robbery. In each instance, there was an acquittal on the charge of murder, and the defendants were subsequently charged with robbery: In rejecting the argument of double jeopardy in Bartonj the Washington Supreme Court said:
“Appellant contends that the offense of murder in the first degree, as charged in the information in the prior case, necessarily includes the offense of robbery; and that, therefore, his acquittal in that case operates as a bar to the information in the present case.
“A person is not put in second jeopardy by successive trials unless they involve not only the same act, but also the same offense. There must be substantial identity of the offenses charged in the prior and in the subsequent prosecutions both in fact and in law. The same act may be a violation of two different penal statutes, in which case there may be two separate and successive prosecutions against the offender because the offenses are not the same.”
Likewise in holding against the contention of double jeopardy in State v. Hall, supra, the Supreme Court of Idaho said:
“The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. * * *
“The crime of murder may be committed without the commission of any of the felonies named in the statute, and the allegation that the homicide was committed while its perpetrators were engaged in a robbery does not charge that the robbery was the manner or means by which the murder was accomplished. The murder was charged to have been committed by means of a gun. The robbery was alleged only as a condition or circumstance characterizing the murder as first degree. The robbery was not an ‘included offense’ in the murder charge. It is clear from the statutory definitions, supra, that murder and robbery are separate, distinct and independent crimes. Neither is the ‘same offense’ as the other, within the constitutional provision against double jeopardy, and a prosecution for one does not bar a subsequent prosecution for the other on that ground. [Here, cases from thirteen states are cited.]”
The court then quoted from 22 C. J. S., Criminal Law, § 278, (1), Page 717, as follows:
“The test is the identity of the offenses, and not the identity of the occurrences or facts out of which they arise; it is not whether accused has already been tried for the same act, but whether he has been put in jeopardy for the same offense.”
It definitely appears that this is the rule followed by a great majority of the states.
Though Arkansas has no exact case in point, the case of Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, is certainly analagous. There, Binganan was convicted for forging and uttering a check, but upon appeal to this court, upon confession of error by the Attorney General, the cause was reversed. Binganan was also indicted for obtaining money under false pretenses by the issuance of the same check. He pleaded his former acquittal. In rejecting this argument, we said:
“Nor was the plea of former acquittal available to appellant. It is true that he was convicted of the offense for the same act, that of issuing the check upon a bank in which he had never had an account and cashing it, upon which he was convicted [of] forging and uttering the same check as a forged instrument,
So, though acquitted on the charge of forgery, Binganan was then convicted of false pretenses, the offense being the writing of the same identical check, and the conviction being based upon the same proof used in the forgery case.
It will be noted that the test set out in Binganan is the identical test set out in the general rule heretofore cited. We find no merit in this contention.
Nor do we agree that the robbery indictment should be dismissed under the doctrine of res judicata.
There are no criminal cases in this state relative to the application of res judicata, but we have several civil cases, and the principle is, of course, the same. The doctrine of res judicata, is discussed in several Arkansas cases.
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Carleton Harris, Chief Justice.
The issue in this case is whether appellant, Dennis Turner, who was tried and acquitted of first degree murder can now be charged and tried for robbery which arose out of the same act. The appellant was charged by the filing of an Information with “willfully, feloniously and violently taking from the person of Larry Wayne Yates, on the 25th day of December, 1968, a sum of money in excess of $300.00 in currency, forcibly and against the will of said Larry Wayne Yates, by intimidating and putting in fear the said Larry Wayne Yates- and while perpetrating robbery, Defendant Dennis Turner did feloniously, willfully, and with malice aforethought, and with premeditation and deliberation, did kill and murder Larry Wayne Yates with a gun # # * in violation of Arkansas Statute 41-2205.”
Appellant was acquitted of murder by a jury on April 24, 1969, and was charged by a grand jury indictment on October 3, 1969, with the crime of robbery. The appellant sought dismissal of the indictment on the grounds that it constituted double jeopardy, and res judicata. The court denied appellant’s motion to dismiss and granted him this appeal. For reversal appellant contends that the doctrines of double jeopardy and res judicata preclude a relitigation of the issue of robbery between the state and the appellant, i iw points are asserted for reversal, but all relate to these two issues.
On appeal it is stipulated: “That the murder charge, of which Defendant Dennis Turner was acquitted, and the robbery charge arose out of the same set of facts, circumstances, and on the same occasion.-
“That the same testimony adduced by the State of Arkansas in the murder trial will necessarily need be reintroduced in this robbery charge.”
The information accusing the appellant with murder was two-pronged: (1) that the murder was committed in perpetration of the crime of robbery and (2) that appellant committed the murder “feloniously. willfully, and with malice aforethought, and with premeditation and deliberation.” This is permissible by Ark. Stat. Ann. § 41-2205 (Repl. 1964) which is our felony-murder statute.
We disagree with appellant’s contentions that the indictment should be dismissed on the principle of double jeopardy. This question was discussed in the Washington case of State v. Barton. 105 P. 2d 63, and also in the Idaho case of State v. Hall, 383 P. 2d 602. Both Barton and Hall had been accused of murder in the first degree, it being alleged that each killed a person while engaged in the perpetration of the crime of. robbery. In each instance, there was an acquittal on the charge of murder, and the defendants were subsequently charged with robbery: In rejecting the argument of double jeopardy in Bartonj the Washington Supreme Court said:
“Appellant contends that the offense of murder in the first degree, as charged in the information in the prior case, necessarily includes the offense of robbery; and that, therefore, his acquittal in that case operates as a bar to the information in the present case.
“A person is not put in second jeopardy by successive trials unless they involve not only the same act, but also the same offense. There must be substantial identity of the offenses charged in the prior and in the subsequent prosecutions both in fact and in law. The same act may be a violation of two different penal statutes, in which case there may be two separate and successive prosecutions against the offender because the offenses are not the same.”
Likewise in holding against the contention of double jeopardy in State v. Hall, supra, the Supreme Court of Idaho said:
“The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. * * *
“The crime of murder may be committed without the commission of any of the felonies named in the statute, and the allegation that the homicide was committed while its perpetrators were engaged in a robbery does not charge that the robbery was the manner or means by which the murder was accomplished. The murder was charged to have been committed by means of a gun. The robbery was alleged only as a condition or circumstance characterizing the murder as first degree. The robbery was not an ‘included offense’ in the murder charge. It is clear from the statutory definitions, supra, that murder and robbery are separate, distinct and independent crimes. Neither is the ‘same offense’ as the other, within the constitutional provision against double jeopardy, and a prosecution for one does not bar a subsequent prosecution for the other on that ground. [Here, cases from thirteen states are cited.]”
The court then quoted from 22 C. J. S., Criminal Law, § 278, (1), Page 717, as follows:
“The test is the identity of the offenses, and not the identity of the occurrences or facts out of which they arise; it is not whether accused has already been tried for the same act, but whether he has been put in jeopardy for the same offense.”
It definitely appears that this is the rule followed by a great majority of the states.
Though Arkansas has no exact case in point, the case of Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, is certainly analagous. There, Binganan was convicted for forging and uttering a check, but upon appeal to this court, upon confession of error by the Attorney General, the cause was reversed. Binganan was also indicted for obtaining money under false pretenses by the issuance of the same check. He pleaded his former acquittal. In rejecting this argument, we said:
“Nor was the plea of former acquittal available to appellant. It is true that he was convicted of the offense for the same act, that of issuing the check upon a bank in which he had never had an account and cashing it, upon which he was convicted [of] forging and uttering the same check as a forged instrument,
So, though acquitted on the charge of forgery, Binganan was then convicted of false pretenses, the offense being the writing of the same identical check, and the conviction being based upon the same proof used in the forgery case.
It will be noted that the test set out in Binganan is the identical test set out in the general rule heretofore cited. We find no merit in this contention.
Nor do we agree that the robbery indictment should be dismissed under the doctrine of res judicata.
There are no criminal cases in this state relative to the application of res judicata, but we have several civil cases, and the principle is, of course, the same. The doctrine of res judicata, is discussed in several Arkansas cases. In order to sustain a plea of res judicata, it must appear that the cause involves the same subject matter as that determined or which could have been determined in a former suit between the same parties. The bar of the former judgment extends to those questions of fact and law which were decided in the former action or which might have been but were not presented. See Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S. W. 2d 349; Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S. W. 2d 19.
In Hastings v. Rose Courts, 237 Ark. 426, 373 S. W. 2d 583, we said:
“ ‘ “It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between, the same parties. But to give this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit.2 If there be any uncertainty on this head in the record — as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, — the whole subject-matter of the action will be large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.* * *” ’ ”
Applying the language quoted to the case before us, it is at once apparent that res judicata is not applicable. The only question determined in the murder trial was whether Turner was guilty of murder. That question has now been adjudicated. But the question of whether he was guilty of robbery was not adjudicated in the first case, and under our statutes, could not have been determined. Murder and robbery cannot be joined together in one indictment. Ark. Stat. Ann. § 43-1010 (Repl. 1964). In fact, there is no offense that can be jointly tried with murder, although that charge includes both first and second degree murder, and manslaughter. Since Turner could not legally be tried for the offense of robbery at the same time he was being tried for murder (and was not so tried), his acquittal on the murder charge certainly was not an adjudication of his guilt or innocence on the robbery charge. This question was likewise discussed in the Washington case of State v. Barton, supra, and also in the Idaho case of State v. Hall, supra. On the question of res judicata, the Washington court said:
“The doctrine of res judicata, as distinguished from second jeopardy, does, as appellant asserts, apply to criminal actions as well as to civil causes; but it is subject to the same limitations. One such limitation is stated in 34 C. J. 969, § 1386, as follows: ‘The rule as to the conclusiveness of a judgment in a criminal case is subject to the same exceptions and limitations as those which pertain to judgments in civil actions. * * *'
“* * * It is not possible to determine whether the jurors returned a verdict of acquittal because they credited the testimony in support of appellant’s alibi, or for the reason that they found the state’s evidence insufficient as to one or more essential elements of the offense charged. They could have utterly disregarded all of the testimony adduced by the appellant in his defense and yet have returned a verdict of not guilty. The verdict and the judgment based thereon were not, therefore, res judicata as to appellant’s alibi, nor as to any other particular fact. They were res judicata only as to the ultimate fact that appellant was not guilty of the crime of which he was accused.”
The court held that Barton’s acquittal on the murder charge did not prevent his being tried on the robbery charge.
In State v. Hall, supra,3 the court stated that, though Hall was acquitted of the charge of murUer, the issue was never joined between the state and defendant on the charge of robbery as such, and the defendant could not have been convicted of robbery under that information. It was pointed out that the jury could have found the defendant not guilty of murder, even though the jury might have believed he was a party to the robbery.
How can res judicata apply to the robbery charge against Turner, because of his acquittal in the murder case, when the offense charged on that occasion was not robbery — but murder, — and when he could not have even been legally tried for robbery in the same indictment?
From what has been said, it is apparent that we do not agree with appellant’s contentions, and we hold that the trial court did not err in refusing to dismiss the robbery indictment against appellant.
Affirmed.
Fogleman, J., concurs; George Rose Smith, Byrd and Holt, JJ., dissent. Emphasis supplied.