State v. Day

Lore: C. J.:

—We think it is admissible.

Mr. Ward:—I offer in evidence the record of the Justice of the Peace of the pointing of the pistol.

(Objected to by counsel for defendant as irrelevant.)

Lore, C. J.:—We think it is admissible.

(A second bond given by the defendant before the Justice was offered in evidence by the State and admitted over the objection of defendant’s counsel.)

Defendant’s Pbayees.

The defendant prayed the Court to instruct the jury first, that they find for the defendant, because the charge contained in the indictment is necessarily included in and constitutes a part of the charge for assault and battery for which he was tried and fined by a court of competent jurisdiction on the 24th of August.

Clark on Criminal Procedure, 402; State vs. Townsend, 2 Harr., 543 ; State vs. Cooper, 13 N. J. Law, 361 (372-5); People vs. Defoor, 100 Cal., 150 .

And second, that if the jury have a reasonable doubt as to the above proposition—this being a criminal case—the defendant is entitled to the benefit of it.

*104 Lore, C. J.:—This is not a question of guilty or not guilty, but whether the assault and battery includes or was the same transaction as the pointing of the pistol—whether the pointing of the pistol was a part of the same transaction for which the defendant was tried and fined in the Court below.

Prayers for the State.

Counsel for the State prayed the Court to instruct the jury that the pointing of the pistol and the assault and battery were two distinct and separate transactions entirely independent of each other; that the facts that go to make up the one form no part in the completion of the other.

Clark on Criminal Procedure, 404; State vs. Inness, 53 Me., 536; Boswell vs. State of Florida, 20 Florida, 869 ; State vs. Hodgkins, 12 N. H., 474; Carter vs. McClory, 183 U.S., 395 .

Lore, C. J., charging the jury :

Gentlemen of the jury:—Albert Day, the defendant, is indicted for pointing a pistol at one J. H. Mahaffy, Jr. He has interposed as a plea in bar to that indictment that he has been heretofore convicted of the offense with which he is now charged in a trial that was had before a Justice of the Peace, George H. Hollis, for an assault and battery, and that having been so convicted he is not liable to be convicted in this case, nor may he be a second time put in peril or punished for the same offense.

In order to avail himself of that plea we will state to you what the law requires as laid down in the case of State vs. Townsend, 2 Harr., 546 .

“ To plead autrefois convict with effect, the crime must be the same in fact for which the defendant was before convicted, or must be necessarily included in the former.”

The defendant claims that it was included in the former; that in the trial for assault and battery before Justice Hollis this whole matter was gone into and that this offense was included.

*105 If you find as a matter of fact from the evidence which has been adduced in this case that the pointing of this pistol was included and was a necessary part of the assault then alleged to have been made by Albert Day upon Henry (J. Mahafify, Jr., then the defense of former conviction would avail and your verdict should be for the defendant; otherwise your verdict should be for the State.

You are only empanelled in this case to ascertain whether or not, from the facts and the law as laid down to you by the Court, the defendant has been convicted of the same offense before, or of an offense including this, and if he has your verdict should be for him. If he has not, as the facts are disclosed before you and upon the law as we have stated it to you, then your verdict should be that he has not been so convicted.

Verdict for defendant.