Moseley v. State

Citation33 Tex. 671
CourtSupreme Court of Texas
Decision Date01 January 1870
PartiesBROWN MOSELEY v. THE STATE.
OPINION TEXT STARTS HERE

1. A defendant charged with a capital offense is subject to be tried on the same charge a second time, after the first jury impaneled in his case were discharged by the court on account of their inability to agree. Such second trial is not inhibited by the provisions of the constitution of the United States and of this state, protecting persons from being twice put in jeopardy of life for the same offense.

2. The statutory provision (Pas. Dig. art. 3084) that the court may, in its discretion, discharge a jury who have been kept together for such a time as to render it altogether improbable they can agree, is not in violation or derogation of the constitutional guaranty above referred to.

APPEAL from Smith. Tried below before the Hon. Samuel L. Earle.

This is an appeal from a determination of the court below of a writ of habeas corpus.

The appellant, together with Gus Moseley, was charged with the murder of Duff Williams. They severed their defenses. In the appellant's case the jury failed to agree, and finally were discharged by the court below, without the consent of the appellant or his counsel. After the mistrial the appellant sued out this writ, on the ground that having once been put in jeopardy of life he could not be tried a second time. The court below decided otherwise, but granted him the privilege of bail.

Donley & Henry, for the appellant.

J. G. Boyle, Assistant Attorney General, for the state.

OGDEN, J.

The question presented by the record and pleading in this case for adjudication by this court, is the legitimate interpretation and construction of that clause of the constitution of the United States, which provides that, “no person shall be subject for the same offense to be twice put in jeopardy of life or limb,” and the consequent interpretation and force of the constitution and laws of this state, in relation to the subject. The constitution of this state declares that “no person for the same offense shall be twice put in jeopardy of life.” And appellant claims, that as he has once been put upon trial in this case, charged with a capital offense, and his case having been submitted to a jury, he has once been put in jeopardy of life, and cannot legally be again tried, notwithstanding the jury failed to agree and were discharged by the court, without having found a verdict.

The philological and legal interpretation of the word “jeopardy,” in its connection with the remaining portion of that clause of the constitution, has been a fruitful source of forensic and judicial discussion, ever since the adoption of the constitution, and indeed for centuries previous.

A history of the origin of, and the discussions and judicial decisions in relation to, that important principle of the common law, that the accused could not be twice put in jeopardy for the same offense, would be more interesting to the student, than useful in arriving at a correct decision of the case at bar. All authorities agree that the word jeopardy, in its common and legal signification, means danger or hazard, but many disagree as to the time when that danger begins to a person charged with an offense, and when it ends. There are those who contend with much plausibility and common sense that the jeopardy or danger begins with the prosecution or indictment, and ends only with the acquittal, or in case of conviction with the execution of the judgment of the court. There are others who in fact maintain that the danger begins and ends with the submission to the jury, and that a verdict is not necessary to complete the jeopardy and save the defendant from another trial. But it is believed that this question has finally been settled by the highest authority in England and America to have reference to the trial and verdict, and that no person can legitimately claim an exemption from a second trial under this maxim, unless he has once been tried by a lawful jury upon a good indictment, and acquitted or convicted. 4 Bla. Com. 335; 2 Kent, Com. 13; Story, Const. 532; 1 Whart. Cr. Law, p. 573; 4 Co. p. 44; and Hawk. P. C. 515.

But it is maintained by counsel for appellant that the court, in trying a capital case, has no legal discretion to discharge a jury without the consent of the defendant, and that a jury having been selected for the express purpose of trying his case, to whom had been...

To continue reading

Request your trial
8 cases
  • Ex Parte Lewis, PD-0577-05.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 10, 2007
    ...87. Lee, 15 S.W.3d at 928 (Keasler, J., dissenting)(quoting from the 1856 Code of Criminal Procedure)(emphasis added). 88. Id. 89. 33 Tex. 671 90. Id. at 672. 91. Id. 92. Id. 673. 93. Id. at 672-673. 94. Id. at 673-674. 95. Id. 96. Id. at 674. 97. 35 Tex. 97 (1872). 98. Id. at 109. 99. Id. ......
  • McElwee v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 21, 1979
    ...of the constitutional provisions, it appeared that Texas would require a final conviction before jeopardy would attach. Moseley v. State, 33 Tex. 671 (1870). However, this view was shortlived. In Powell v. State, 17 Tex.App. 345 (1884), the court adopted a procedure seemingly similar to the......
  • State v. Ulrich
    • United States
    • United States State Supreme Court of Missouri
    • May 31, 1892
    ...it is to be presumed that the necessary facts were proved, and no other tribunal is at liberty to re-examine the question." In Moseley v. State, 33 Tex. 671, the in discussing this question says: "But it is believed that there is no decision by any court of respectable authority, that has g......
  • Johnson v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 25, 1914
    ...jeopardy attaches. In the case of Powell v. State, 17 Tex. App. 345, this rule was announced, specifically overruling the case of Moseley v. State, 33 Tex. 671. In the Moseley Case the court was inclined to the opinion that jeopardy did not attach until verdict was rendered, but in the Powe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT