Allen v. State

• Decision Date: 24 July 1906
• Citation: 41 So. 593,52 Fla. 1
• Parties: ALLEN v. STATE.
• Court: Florida Supreme Court

41 So. 593

52 Fla. 1

ALLEN v. STATE.

Florida Supreme Court, Division B.

July 24, 1906

Error to Criminal Court of Record, Duval County; S. T. Shaylor Judge.

William Allen was convicted of forgery, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon an indictment or information which is sufficient in form and substance to sustain a conviction and a jury has been charged with his deliverance; and a jury is said to be thus charged when they have been impaneled and sworn.

The silence of a defendant on trial for crime, or his failure to object or protest against an illegal discharge of the jury before verdict, does not constitute a consent to such discharge, or a waiver of the constitutional inhibition against a second jeopardy for the same offense.

The power of the court to discharge a jury who have been sworn in chief before verdict should be exercised only in case of a manifest, urgent, or absolute necessity. If the jury are discharged for a reason legally insufficient, and without an absolute necessity for it, and without the defendant's consent, the discharge is equivalent to an acquittal, and may be pleaded as a bar to any further trial, or to any subsequent indictment.

COUNSEL George C. Bedell, for plaintiff in error.

W. H Ellis, Atty. Gen., for the State.

OPINION

TAYLOR J.

The plaintiff in error, as defendant below, was informed against in the criminal court of record for Duval county for the crime of forgery, was tried, convicted and sentenced, and seeks relief here by writ of error.

On March 7, 1906, the defendant was arraigned and entered a plea of not guilty. Thereupon a panel of six jurors were examined on their voir dire, and were challenged for cause both to the array and individually, which challenges were overruled by the court and a complete jury of six was sworn in chief to well and truly try and true deliverance make between the state of Florida and the defendant. Thereupon the defendant's counsel called the attention of the court to the fact that one of the witnesses named Harrison, indorsed on the back of the information as a state witness, was also a witness for the defense, and that such witness, who lived a few miles out from Jacksonville, where the trial was proceeding, was absent from the courtroom, and moved for time to get said witness. The court then ordered the facts so stated to be set forth in the form of an affidavit. The county solicitor thereupon moved the court that the jury be discharged from further consideration of the case, and that said cause be continued until the 16th of March. This motion of the county solicitor was granted by the court and the jury discharged.

On March 21, 1906, when the cause was again called for trial the defendant by leave of the court withdrew his plea of not guilty and interposed a plea of former jeopardy, setting up the former proceedings above recited. To this plea the state interposed a demurrer, which demurrer was sustained by the court, upon which the defendant was put to trial before another jury, who returned a verdict of conviction to which the writ of error is addressed. The order sustaining the demurrer of the state to the defendant's plea of former jeopardy is assigned as error.

In this ruling the court below erred. The discharge of the former jury, who had been charged with the defendant's case upon the arbitrary motion of the state's solicitor without any necessity or legal reason therefor, and without the consent of the defendant, amounted to an acquittal of the defendant, and his plea of former jeopardy should have been sustained, the state's demurrer thereto overruled, and the defendant discharged without day. It is true that the defendant had asked the court for time to procure the attendance of an absent witness who resided a few miles from the court; but he did not ask for a continuance of the cause, or for a discharge of the jury, and an arbitrary discharge of the jury under these circumstances, without his consent, amounted to his acquittal. His silence or failure to object or protest against the discharge of the jury did not constitute a consent or a waiver of his constitutional right. State v. Richardson, 47 S.C. 166, 25 S.E. 220, 35 L. R. A. 238. ...