Bland v. State

• Decision Date: 21 November 1900
• Parties: BLAND v. STATE.
• Court: Texas Court of Criminal Appeals

59 S.W. 1119

BLAND v. STATE.

Court of Criminal Appeals of Texas.

November 21, 1900.

Appeal from district court, Waller county; Wells Thompson, Judge.

Anderson Bland was convicted of theft, and he appeals. Reversed.

Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft of a hog, and his punishment assessed at two years' confinement in the penitentiary.

The only question presented for our consideration is the action of the court in regard to defendant's plea of former jeopardy, which was stricken out by the court on motion of the district attorney; said plea setting up the fact that in the same case, on the day preceding the trial and conviction in this case, defendant had been placed upon trial, and a jury was regularly impaneled and sworn to try the case. After the state's testimony in chief had been adduced, and during the examination of defendant's witnesses, one of the jurors (Amos Brown) stated that he was sick, and that he had a chill, whereupon the court, of his own motion, discharged said juror and allowed him to go home, after which he asked counsel for defendant if he was willing to impanel another juror and go on with the case. Counsel stated that he would not consent or agree to anything, and thereupon the court discharged the remaining 11 jurors, without the consent of appellant. Attached to this motion is the order of the court discharging the jury, which recites, in substance, that after the jury had been impaneled to try said case, and while the evidence was being adduced, one of the jurors, to wit, Amos Brown, became so sick as to prevent his continuing on the jury; and this fact being patent and clear to the court, and the court being convinced that said juror was unable to longer discharge the duties of a juror in the case, the court ordered said juror discharged on account of said sickness, etc. The answer of the state to the plea set up the facts recited in the judgment discharging the jury, and asked that the plea of former jeopardy be stricken out, which was done by the court, and appellant excepted. In the motion for new trial the question was again brought up, and appellant excepted to the action of the court in striking out his said plea, and for refusing to hear evidence thereon. The court, in explaining his action in this matter, in connection with the bill of exceptions, stated: "That he struck out said plea because, in the opinion of the court, there was no former jeopardy. That during the trial of the case the juror Brown staggered up to the judge's stand and fell down, looking to the court like he was a very sick man, which was a fact, and said that he was unable to sit up, and asked to be allowed to go, whereupon the court deemed it absolutely necessary for him to leave the court room, and that there was no time to call in a doctor, and go through the form of trying whether he was sick or not. The court ordered him discharged, and then and there offered defendant the right to select another juror and start the testimony over again. But defendant would not say anything, whereupon the court discharged the entire jury, and the next day impaneled another jury to try defendant; and on the second trial defendant filed his special plea of former jeopardy, which the court struck out, because the court knew there had been no jeopardy, and it would have been absurd and ridiculous to have submitted such an issue to the jury, because he would have instructed them that there was no former jeopardy, and to disregard the plea, for it was a question of absolute necessity to discharge the jury, which necessity vested in the discretion of the court, and of which the court alone could judge."

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