On petition for rehearing it is urged that it is not necessary to plead in bar a former jeopardy as is required under the common law and petitioner cites Bishop on Criminal Laws, 9th Edition, Sec. 982, pages 728-729; Sec. 1012, sub-section 2, page 749.
We entirely agree with the statement of legal principles thus enumerated.
But, whether or not one charge with the commission of a criminal offense is in position to claim and have the protection of Section 12 of the Declaration of Rights is a question of fact.
There must be something more than a mere claim of former jeopardy. There must be a timely assertion of the claim by and with such allegations as are sufficient to show if proven by the accused or admitted by the State that the provision of the Constitutional right, supra, is about to be, or is being violated. Wallace v. State,
A mere assertion of the conclusion that the accused has beforetime been placed in jeopardy under an information or indictment charging the same offense is not sufficient because such assertion presents no traversible statement of facts and tenders no issues of fact to be determined upon which to base an adjudication.
This must not be true, else the Constitution provides a splendid avenue of escape of the guilty. For instance, Doe enters and holds up First National Bank of X and robs the *Page 560 Bank of $5,000.00 He then proceeds down the street and holds up and robs the Peoples National Bank of X of $5,000.00. He is placed on trial under a charge of robbery of First National Bank of X but there is a failure to identify him as the perpetrator of the robbery and he is acquitted. He is then placed on trial charged with the robbery of Peoples National Bank of X. The language of the informations is identical except of the words "First" in one and the word "Peoples" in the other. As to the latter he pleads "not guilty" and on trial is identified and convicted. May he be granted a new trial on the mere assertion in motion that the two informations constituted and were one and the same offence? Certainly not.
On the other hand, if, on being arraigned on the second information he filed a plea containing sufficient allegations to show that both informations referred to and charged the commission of one and the same criminal act and one and the same substantive criminal offense, the State could either admit the allegations of the plea or join issue thereon and try the issue of fact there presented.
It may be that the accused in this case would have interposed and proved a good plea but it must be presumed that if he could have done so he would have pursued that course.
Petition for rehearing is denied.
TERRELL, C.J., and BUFORD and THOMAS, J.J., concur.
CHAPMAN, J., concurs in opinion and judgment.
Justices WHITFIELD and BROWN not participating as authorized by section 4687 Complied General Laws of 1927 and Rule 21-A of the Rules of this Court. *Page 561
