Armentrout v. State

• Decision Date: 07 June 1938
• Docket Number: 27009.
• Citation: 15 N.E.2d 363,214 Ind. 273
• Parties: ARMENTROUT v. STATE.
• Court: Indiana Supreme Court

15 N.E.2d 363

214 Ind. 273

ARMENTROUT v. STATE.

No. 27009.

Supreme Court of Indiana

June 7, 1938

Appeal from St. Joseph Circuit Court; Lewis W. Hammond, Special judge.

Floyd O. Jellison, of South Bend, and Neal Williams & Ullum, of Indianapolis, for appellant.

Omer Stokes Jackson, Atty. Gen., and Walter O. Lewis, Deputy Atty Gen., for the State.

ROLL Judge.

The appellant was indicted by the grand jury of St. Joseph county, the indictment being in two counts. The cause was set for trial on the 8th day of June, 1937, a which time the defendant entered a plea of not guilty and the cause was submitted to a jury for trial. The jury was impanelled and sworn to try the cause. The Prosecuting Attorney made his opening statement to the jury, following which counsel for appellant proceeded to make the opening statement to the jury for the defendant. During the course of the opening statement to the jury counsel for defendant stated in substance that:

'If this girl (prosecuting witness) takes the witness stand and testifies against her Father she will do so as an unwilling witness, to which remark counsel for the state objected; that the defendant's counsel also stated that she (prosecuting witness) was then under arrest and in the hands of the Sheriff to which remark the prosecuting attorney also objected. Whereupon the court addressing counsel for defendant stated that the girl was not under arrest. Also instructed defendant's counsel not to make such remarks or the court would have to take the case from the jury.'

Whereupon counsel for appellant said: 'Well there she is between the Sheriff and the matron,' or words to that effect and 'Certainly she was not a free witness.'

Whereupon the court withdrew the submission of the cause from the jury and discharged the jury over the objection of appellant. On the 10th day of June, 1937, the appellant filed his verified motion for a discharge from further prosecution and from jail, supported by the affidavit of appellant herein and by Floyd O. Jellison, counsel for appellant. This motion for discharge was based upon the ground that the appellant had been once put in jeopardy by having been duly charged by grand jury indictment and the cause being set for trial and a lawful jury having been regularly and duly impanelled and sworn to try the cause, and that the court thereafter over the objection of appellant withdrew the submission of the said cause from the jury and discharged the jury without legal right and for this reason the defendant had been placed in jeopardy and that he was, therefore, entitled to be discharged.

The court overruled this motion, exceptions were duly saved and the action of the court in overruling this motion is assigned as error. Other questions are sought to be presented by this appeal but in view of the conclusion we have reached it is unnecessary to set them out or discuss them in this opinion.

Jeopardy is the peril and danger to life or liberty in which a person is put when he has been regularly and sufficiently charged with the commission of a crime; has been arraigned and pleaded to such charge; has been put upon his trial before a tribunal properly organized and competent to try him for the offence charged, and a jury has been impanelled from persons competent to sit on the trial and duly sworn to try the cause and charged with due deliverance. It is undisputed and the motion filed for a discharge clearly shows that all of the above requisites was present in this case. The only question presented was whether or not the discharge of the jury under the circumstances in this case would prevent jeopardy from attaching. Wharton's Criminal Law, 12 Ed., vol. 1, § 395, p. 548, says:

'After the trial of a criminal charge has been duly entered upon before a court regualrily organized, and having jurisdiction of the subject matter of the charge, and competent to try the defendant, on an indictment sufficient to support any judgment that may be rendered, with a lawful jury properly selected and sworn, a discharge of such jury, without the consent of the accused, and without the existence of a state of facts under which the law provides for a discharge of a jury without a verdict, is equivalent to an acquittal of the defendant of the charge, and he cannot thereafter be tried thereon. The only causes for which a jury impanelled and sworn to try an accused on a criminal charge can be discharged by the court without a verdict are: (1) Consent of the prisoner; (2) Illness of (a) one of the...