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Show I. VICTORY FOB MOSES , ' Supreme Court Decides in Favor of Creechley. j, (. WILL GET A NEW TRIAL ! ' Opinion Based on tho Former ! ' Acquittal,-1 Acquittal,-1 Interesting Point Brought Out in the . Declsloii-rJudgo . McCarty , j Dissents. ' k-' 1 The plea of "nutrefols acriult" Is" oarncdly discussed In an opinion of ) the Stntc Supreme court handed (dovn yesterday In the case of the State vs. i Moses Creechley, appellant The de- fondant was charged with the crime of perjury alleged to have been comnilt- , ted while testifying- In a criminal nc- f tion prosecuted against him In the r Second District court In Morgan coun- i ly. The defendant entered plea of "not guilty" and of "former acquittal" ' lo the Information. At the trial the Jury returned a. verdict of "guilty as I charged In the Information," but made 1 no finding upon the other plea of "autrefois acquit." i 1 A motion for a new trial was ovcr- L ' ruled by the court and the defendant t sentenced to six years In the State I prison. The case was thereupon ap- I I pealed to the Supreme court, the point ' raised being that the court erred In ) passing and rendering judgment I against the appellant, the Jury having j failed to Und or return any verdict I upon the appellant's plea of former acquittal, '"j NEW TRIAL IS GRANTED, fjj) i This contention is held to be sound t'il i uy t'ie Supreme court and the cause Is in f remanded to the court below with dl- 11' , j The opinion holds, "Whenever a de- liF; fondant In a. criminal action enters the l';J ' plea of autrefois acquit. It becomes the I J j plain duty of the court to require the I .. j , jury, before discharging It, to find upon i the issue thus raised. This Is so not- 1$, withstanding the fact, as Insisted by , If! I the respondent, that the burden of it d nrvl: his former acquittnl of the jt same offense Is upon the accused. I.)' ' Whether or .not there was proof show- iJ ' Ing a former acquittal of the Identical I'plJ, offense, the plea raised a question of H M fact, for the determination of the jury, I . I as much so as the plea of not guilty. 1 i "So in this case the court having" dis- . it' charged the jury without a finding .li upon that plea. It was ground for a new J! . trial, and the motion therefor ought 3 j lo have been granted." j t JUDGE M'CARTY DISSENTS, jjl The opinion, which js written by I . Justice Bartch and concurred In by jJc Chief Justice Baskln, Is dissented to lj by Justice McCarty. Justice McCarty ft' hoIds that the former acquittal of the 1 3"l I defendant of the crime of grand lar- '1 eeny, at which trial the alleged crime Pl 1. 1 of perjury was committed, had noth- t ' t0 d0 with his pleading in the scc- ft ond trial for perjury. He holds that il the appellant pleaded his former ac- , qulttal on the charge of larceny, as a 1 ' har to a prosecution for perjury. "That ii J ls ne Dlea(1'1 he woh acquitted of the ti crime of perjury in the verv case in !) which he Is charged wlih having com- J mitted the crime. At the trial he in- i ,1 troduced no evidence In sunnort of the I J 'J plea of former acquittal, and the jury j V ' failed to find on that issue. The bur- LC, ' ,len of Proving his plea of former ao- Mi , qulttal, was on lh defendant. I n V1 an1, therefore, decidedly of the . opinion that the court did right In ig- norlng the plea as it was, In effect. ali t cl,anSe1 u" the stipulation, as It raised j "0 issue that could in any wav affect , 6 the rights of the defendant, and that j. the judgment of the trial court ought I . lo be affirmed." |