BEFORE BROOM, PRATHER AND ROBERTSON
ROBERTSON, JUSTICE, FOR THE COURT:
In the early morning hours of Sunday, December 28, 1980, well before dawn, a man broke into and entered the trailer home of Mrs. J. B. Ross near Sunflower in Coahoma County, Mississippi. The next day Percy Lee Sanders, defendant below and appellant here, was arrested and formally charged with this crime.
On July 8, 1981, Sanders was charged with the armed burglary of an inhabited dwelling at nighttime in an indictment returned by the Coahoma County Grand Jury. Miss. Code Ann. 97-17-23 (1972). On July 30, 1981, this case was called for trial in the Circuit Court of Coahoma County. After hearing all the evidence and receiving the instructions of the court and the arguments of counsel, the jury in due course found Sanders guilty as charged. As a recidivist, Sanders was sentenced to serve a term of 25 years without eligibility for probation or parole.
From this conviction and sentence, Sanders appeals. We reverse.
By far the most serious question presented on this appeal is whether or not prosecution of Sanders on the instant burglary charge was precluded under the double jeopardy clause of the Fifth Amendment to the Constitution of the United States, made applicable to the states via the Fourteenth Amendment. Sanders also invokes the protections of this state's double jeopardy clause found in Article 3, Section 22 of the Mississippi Constitution of 1890.
The facts pertinent to the double jeopardy issue are these. Upon his arrest on December 29, 1980, Sanders was charged with two felonies, burglary and rape. On January 7, 1981, the Coahoma County Grand Jury returned two indictments against Sanders. In case No. 6268, Sanders was indicted for the rape of Mrs. J. B. Ross during the early morning hours of December 28, 1980. In case No. 6269, Sanders was indicted for the burglary of an inhabited dwelling. *fn1 Without question, these two indictments, as well as the indictment which led to the instant conviction in case No. 6305, all arose generally out of the same series of events occurring in the mobile home of Mrs. J. B. Ross in the early morning hours of December 28, 1980. *fn2 There is an obvious common nucleus of operative facts among these charges.
On or about February 16, 1981, defendant was put to trial on the charge of rape as per the indictment in case No. 6268.
Two days later, the jury returned a not guilty verdict. Sanders here argues that this acquittal on the charge of rape insulates him from prosecution on the factually and temporally related charge of burglary.
Our inquiry here is whether Sanders emerged from the rape trial armed with a jury finding of fact in his favor with which the instant burglary conviction cannot logically coexist. Here we must review the issues submitted to the jury at the rape trial and ascertain what, if any, findings of fact in Sanders' favor rationally flow therefrom. For if the jury's verdict in the first trial necessarily was based upon a finding of fact which must per force exonerate Sanders here, he is entitled to relief. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Clements, 383 So. 2d 818 (Miss. 1980)
At the rape trial, Sanders vigorously pressed only one theory of defense: that he was not the person who entered the mobile home in the first place, that the true villian of December 28, 1980, was one Willie Earl Scott, who admittedly had been in the vicinity at the time in question. We have carefully reviewed the evidence in the record at the first trial. It is clear beyond a reasonable doubt that on the morning in question someone broke into the Ross mobile home - a man wearing a cap over his face. It is clear beyond a reasonable doubt that this same someone assaulted and raped Mrs. J. B. Ross. Mrs. Ross could not identify this man.
In proceedings before the jury, the defense proceeded on a single theory: Willie Earl Scott did it. In his final argument to the jury defense counsel emphasized a single theory: Willie Earl Scott did it. "It" includes the entire series of events breaking and entering the mobile home and the rape of Mrs. Ross. Under the circumstances a rational juror voting for acquittal at the rape trial could only have proceeded on the theory that Willie Earl Scott, not Percy Lee Sanders, broke into the mobile home on the night in question and raped Mrs. Ross. *fn3 Stated more precisely, the jury verdict at the rape trial can only mean that the evidence failed to convince the jury beyond a reasonable doubt that Sanders did it. No other theory was ever advanced to the jury.
It is true that the jury at the rape trial was given a standard instruction on the elements of the offense of forcible rape. The jury, of course, was told that in order to convict it had to find beyond a reasonable doubt each element of the offense. The jury at the rape trial could have found that the State failed to prove that Mrs. Ross was a female person, but under the evidence it could not rationally have done so. At the rape trial
the jury could have found that the State failed to prove penetration, but in view of the evidence and particularly the testimony of the expert witness, Dr. McCrory, it could not rationally have done so. The jury could have found a failure to prove force, and perhaps other elements of the offense, but it could not rationally have done so!
We emphasize from yet another vantage point Sanders' jeopardy on the breaking and entering, the elements of burglary, at the rape trial. At the rape trial the State offered substantial evidence to show that Sanders broke and entered into the Ross mobile home. Willie Earl Scott himself testified that he witnessed Sanders remove the window screen, break the window and enter the trailer, armed with a knife. Without doubt all of this was a part of the res gestae at the rape trial and admissible as such. Yet who can doubt that such evidence was offered to enhance the State's chances of obtaining a conviction. Practically speaking the evidence of the breaking and entering placed Sanders in substantial jeopardy. It was in a sense evidence of aggravating circumstances intended to prejudice Sanders before the jury. That Sanders successfully eluded this jeopardy by convincing the jury that he was not the man who did either form of breaking and entering does not erase the fact that Sanders had been placed in substantial jeopardy by virtue of the State's proof.
The Fifth Amendment to the Constitution of the United States protects an accused against "double joepardy" .
". . . [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . ."
This protection against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969); Ashe v. Swenson, 397 U.S. 436, 437, 90 S. Ct. 1189, 25 L.Ed.2d 469, 471 (1970). This Court enforces rights secured to its citizens by the Constitution of the United States. When it does so, it obediently construes those rights in conformity with authoritative constructions placed upon them by the Supreme Court of the United States. Bolton v. City of Greenville, 253 Miss. 656, 666, 178 So. 2d 667, 672 (1965).
The disposition of this case is controlled by Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d ...