Jones v. State

Citations

• 66 Miss. 380

Syllabus

<p>1. Criminal Law. Former conviction. Assault upon several. Single difficulty.</p> <p>If a person, engaged in a difficulty with two opponents, unlawfully strikes each of them, he is subject to conviction for each assault, and a conviction for one will not bar a conviction for the other. Teat v. The State, 53 Miss. 439.</p> <p>2. Former Acquittal; Not a.Bar, When.</p> <p>And if in such fight a person lawfully strikes one adversary, but unlawfully strikes another, an acquittal for the assault upon one will not bar a conviction upon a charge of unlawfully assaulting the other.</p> <p>3. Same. Distinct charges.</p> <p>If the defendant, in the same fight, strikes Lloyd and also Thomas, and upon the trial of the indictment for assault upon Thomas, the issue be confined to the independent act of that assault, the acquittal for the assault upon Lloyd is not a bar, nor is the record of such acquittal competent evidence to prove that the assault upon Thomas was justifiable.</p> <p>4. When Evidence op Such Acquittal Competent.</p> <p>But if, upon such trial, it develops that the prosecution seeks.to obtain a conviction for the assault upon Thomas, on the theory that the defendant struck Thomas, believing him to be Lloyd, it is then competent for defendant to prove his acquittal for the act of striking Lloyd, for the state is relying upon the criminal intent of defendant toward Lloyd, which has been conclusively disproved by the acquittal.</p> <p>5. Former Conviction or Acquittal. Ingredient offenses.</p> <p>A conviction or acquittal upon an indictment for an assault and battery with intent to kill bars a subsequent prosecution for the ingredient offenses, assault and battery and simple assault.</p> <p>6. Evidence. Incompetent, how made competent.</p> <p>Evidence which, wh^n offered, is incompetent under the theory of the state, may be made competent by the subsequent act of the state in its instructions, which change the theory upon which it seeks to secure a conviction.</p>