Cody v. State

• Decision Date: 14 October 1963
• Docket Number: No. 5091,5091
• Citation: 371 S.W.2d 143,237 Ark. 15
• Parties: James D. CODY and Gardner Lee Muse, Appellants, v. STATE of Arkansas, Appellee. *
• Court: Arkansas Supreme Court

Page 143

371 S.W.2d 143

237 Ark. 15

James D. CODY and Gardner Lee Muse, Appellants, v. STATE of Arkansas, Appellee. ^*

No. 5091.

Supreme Court of Arkansas.

Oct. 14, 1963.

Penix & Penix, Jonesboro, for appellants.

Bruce Bennett, Atty. Gen., by Richard B. Adkisson, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

This appeal results from the refusal of the Craighead Circuit Court to dismiss forgery charges against appellants on grounds of double jeopardy. The facts, briefly, are as follows:

Appellants, James D. Cody and Gardner Lee Muse, were arrested and incarcerated in the Craighead County Jail on November 17, 1962. An information charging them with forgery was filed ten days later in the Circuit Court. Neither defendant was able to make bond, and they have remained in custody since their arrest. Five months later the court was advised that appellants were indigent and unable to retain counsel; the court, on April 17, 1963, appointed counsel to defend appellants on the charge, and the next day, April 18, the trial began. The jury was selected, impaneled and sworn, and the state proceeded to call five witnesses, including merchants, whose testimony dealt with the claimed forgery, and officers, who testified to a confession by Muse and certain oral statements by Cody. Defense counsel moved for a mistrial after the Muse confession was read, because the confession included incriminating statements relative to Cody. The jury was instructed that the evidence should not be considered as to Cody, and the motion for mistrial was overruled. At the conclusion of the testimony of these five witnesses, the state rested. Charles Muse, a brother of defendant Muse, was placed on the stand, evidently for the purpose of testifying to mental incompetency on the part of his brother, dating back to a harrowing war experience, but when Charles was asked, 'Where has your brother been in the years since World War II?' the Prosecuting Attorney objected, and the court sustained the objection. Appellant, Gardner Muse, then testified, stating, inter alia, that he was drunk and had been in that condition for two days at the time the checks were written; that he had no recollection of writing same, and subsequently mentioned that he had taken a number of shock treatments. At the conclusion of his testimony, the trial was recessed over the weekend. When the court reconvened on Monday morning, the trial judge in chambers made the following statement:

'On Thursday, April 18, 1963, at about 4:45 P.M. this Court was recessed until this morning. At the time of the recess the defendant, Gardner Lee Muse was on the stand. The defendant Muse had entered a general plea of not guilty to the crime of forgery upon which he is being tried. Prior to the commencement of the trial no notice had been given or indication made that insanity would be a defense. During the course of examination of witnesses, the testimony drifted toward the defendant's actions tending to lead to a showing of the possibility of insanity. Certain rulings were made by the Court relative to the issue of insanity and of the competency of testimony relating thereto. During the adjournment of this case, the Court has had an opportunity to further consider the matter and the law pertaining thereto and now makes this ruling: under the general plea of not guilty, this defendant has the right to avail himself of any defenses which the testimony adduced in this cause tends to establish including that of insanity. Any ruling heretofore made by the Court in conflict herewith shall be superseded by this ruling. If any of the parties wish to recall any of the witnesses for further examination in view of this ruling, they will be permitted to do so.'

The state, through the Assistant Prosecuting Attorney, then moved the court to declare a mistrial in the case, and order Muse committed to the Arkansas State Hospital for observation and examination. This motion was made on the basis of Ark.Stat.Ann. § 43-1301 (Supp.1961), the pertinent portion of which provides:

'If the trial has already begun when the issue of insanity is raised, and the court deems it necessary for the proper administration of justice that a mistrial be declared, it shall be the duty of the judge of declare such mistrial, and then to proceed as herein provided. * * *'

Defense counsel objected, and the court denied the motion, stating:

'If after proceeding with the evidence it is shown that there is a possibility of insanity, then the Court under the statute can exercise its discretion as to declaring a mistrial and have him sent to the State Hospital for observation, or in the alternative, may have him examined by two local doctors. At this time the Court finds nothing in the record to justify a mistrial for observation of the defendant.'

Charles Muse, the brother of appellant, was then recalled to the stand, and testified that the mental condition of his brother had radically changed after the war. He related a number of incidents which tended to show a highly nervous and incompetent condition, and further testified that his brother had, in 1960, been a patient in the Psychiatric Ward at Kennedy Hospital, where he had received a number of shock treatments, and had also been committed to the Mississippi State Hospital twice. Following the testimony of this witness, the court called a short recess, and in chambers made the following statement to counsel:

'Gentlemen, in view of the trend of the testimony that has been adduced from this particular witness, the brother of the defendant, and a close associate, the court deems it necessary for the proper administration of justice to declare a mistrial and commit the defendant to the State Hospital for observation.'

Defense counsel strenuously objected, and likewise vigorously objected and noted exceptions when the court announced that it was declaring a mistrial also as to Cody, counsel announcing that he would plead double jeopardy as to both defendants. The court entered its order directing that Muse and Cody be delivered to the State Hospital for Nervous Diseases for the purpose of observation and examination, and directed that all proceedings in the case be held in abeyance pending the completion of such examinations. Appellants filed their motion seeking dismissal of the cause on grounds of former jeopardy, and the court entered its order overruling such motion, and granting an appeal.

Before discussing appellants' contentions, we might first make mention of one of the arguments advanced by the state. In the instant case the Prosecuting Attorney, after the court had announced that it was declaring a mistrial as to Cody, called attention to the fact that this defendant had already moved for a mistrial himself, and the Prosecutor stated: 'At this time the state joins in the motion * * * that a mistrial be granted in this case.' Counsel for appellants then asked to withdraw the motion. It is difficult to determine from the record what action was taken by the court in this respect; in fact, the record does not reveal that any order or statement was made by the court relative to this request. It does not appear, however, that the court's order declaring a mistrial was in any wise based on defendant's earlier motion. Of course, this motion had already been passed upon and was not at issue when the insanity of Muse was suggested by the evidence.

The Attorney General argues that Cody, by his earlier request for mistrial, 'waived his constitutional right of jeopardy notwithstanding the trial court originally denied the motion * * *.' We do not agree with this argument. The situation is closely akin to the Florida case of State ex rel. Manning v. Himes, 153 Fla. 711, 15 So.2d 613. In that case, the defendant moved for a mistrial on grounds of the admission of improper testimony (as was here done), and the motion was overruled by the trial judge. Thereafter, the state, after it appeared that it would be unable to establish a case, joined in the motion, and the defendant attempted to withdraw his motion, which the court denied, such denial being based upon the fact that the state had already acquiesced in the motion. The Supreme Court of Florida reversed the trial court, holding that the defendant should have been permitted to withdraw his motion. Here, too, even if the court had based the mistrial on appellants' earlier motion (which evidently was not the case), we would reverse, and hold that the motion for withdrawal should have been granted.

Appellants devote the first point in their brief to the fact that the order overruling the motion to dismiss is appealable, and, among other cases, cite Jones v. State, 230 Ark. 18, 320 S.W.2d 645. However, the appealability of the order is not at issue since no motion has been made by the state to dismiss the appeal, the Attorney General apparently conceding that the order is appealable, and that Jones v. State is sufficient authority for that conclusion. While it is true that the second trial has not been set, and it is within the realm of possibility that a second trial would never be held, the proceedings need not advance to that extent before the issue of double jeopardy can be passed upon. In the Jones case, we said:

'When the jury is finally sworn to try the case ¹ (§ 43-2109 Ark.Stats.), jeopardy has attached to the accused; and when, without the consent of the defendant, express or implied, the jury is discharged before the case is completed, then ² the constitutional right against double jeopardy may be invoked, except only in cases of 'overruling necessity'.'

Of course, it would be pointless to send a case back for re-trial, necessitating the additional expense to the county, and depriving the defendants of their freedom for months longer, if we feel that the contention of double jeopardy contains merit and would eventually be upheld under the facts presented. As stated in Jones v. State, supra:

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