Doles v. State
| Decision Date | 11 October 1884 |
| Docket Number | 11,390 |
| Citation | 97 Ind. 555 |
| Parties | Doles v. The State |
| Court | Indiana Supreme Court |
From the Tipton Circuit Court.
The judgment is affirmed, with costs.
D Waugh, J. P. Kemp, R. B. Beauchamp and G. H. Gifford, for appellant.
C. C Shirley, Prosecuting Attorney, J. W. Kern and J. A Swoveland, for the State.
In this case, an indictment was duly returned by the grand jury of Tipton county into the court below, wherein it was charged, in substance, that the appellant George Doles, on the 28th day of February, 1882, in Tipton county, "did then and there unlawfully, feloniously, wilfully, purposely, and with premeditated malice, unlawfully kill and murder James P. White, by then and there unlawfully, feloniously, purposely, wilfully, and with premeditated malice, cutting, stabbing and mortally wounding said James P. White with a knife, which he, said George Doles, then and there had and held, contrary to the form of the statute."
Afterwards, at the November term, 1882, of the court below, upon the appellant's arraignment and plea of not guilty, the issues joined were tried by a jury, and a verdict was returned finding him guilty of voluntary manslaughter, and assessing his punishment at imprisonment in the State prison for the period of twenty-one years. Over his motions for a new trial and in arrest of judgment, the court rendered judgment against him, in accordance with the verdict.
Several errors are assigned by the appellant upon the record of this cause, but the questions discussed by his counsel, in argument, are such as are presented by and arise under the alleged error of the court in overruling his motion for a new trial. Regarding the other errors assigned as waived, we shall consider and decide in this opinion such questions only as the appellant's counsel have presented for decision, in their well considered brief of this cause.
Counsel consider together the questions presented by the first three causes for a new trial, in the appellant's motion therefor, which were, in substance, as follows: 1. Error of the court in excusing and discharging from the jury Andrew J. Hobbs, after the jury had been accepted and sworn to try the issues joined in the cause, over the appellant's objection; 2. Error of the court in discharging the entire panel or jury, after they had been accepted and sworn to try the issues in the cause, over the appellant's objection; and 3. Error of the court in causing another or second jury to be empanelled, over the appellant's objections, and in compelling him to go to trial before such jury on said charge, a second time, over his objections.
In reference to these causes for a new trial the appellant's counsel say: "We think the court erred in discharging the juror Hobbs over the appellant's objections, after the jury had been empanelled and sworn to try the cause; and the court erred in empanelling another jury, and in requiring the appellant to again enter upon his trial, having been once in jeopardy." It may well be doubted, as it seems to us, whether the action of the court thus complained of by the appellant constitutes any proper or sufficient cause for granting him a new trial. A motion by the appellant for his discharge, on the ground that he had once been in jeopardy for the offence charged, would have properly presented the question to the trial court for decision, and if such motion had been overruled the assignment of such ruling as error would have properly presented the question for our decision. But waiving this point, and conceding, without deciding, that the question is properly before us, we think that the action of the court complained of in the first three causes for a new trial is not shown by the record to have been erroneous.
It is shown by the bill of exceptions that after the jury had been accepted and sworn to try the cause, the juror Hobbs being one of the panel, and before any other step was taken in the cause, the court adjourned, and, with the consent of the parties, permitted the jury to separate, under its instructions, during the adjournment; that when the court convened again the juror Hobbs stated to the court that he was sick and unable to serve as a juror in the cause, and asked to be excused from serving on said jury; that, upon the evidence of the juror and his physician then heard, the court found, and was justified, we think, in finding, that the statements of such juror were true; and that thereupon the court, over the appellant's objections, discharged such juror and the entire panel from the further consideration of the cause. It was further shown by the bill of exceptions that the court immediately called the cause again for trial, and that the appellant at the time objected to being required again to answer the indictment and being again put upon his trial thereon, for the reason that he had once been put upon his trial and in jeopardy on said indictment, which objections were overruled by the court, and to this ruling the appellant excepted. The bill of exceptions further shows that thereupon a second jury was empanelled and sworn to try the issues in the cause, and that the appellant at the time objected to going to trial again upon said indictment, before such last empanelled jury, for the reason that he had already been put upon his trial and in jeopardy on said indictment, which objection the court overruled and compelled him to go to trial before said jury on said indictment, and to this ruling and action of the court he at the time excepted.
In section 14 of the Bill of Rights, in the Constitution of this State, it is declared that "No person shall be put in jeopardy twice for the same offence," and the same provision is found in article 5 of the amendments of the Federal Constitution. Section 29, R. S. 1881. If, therefore, it can be correctly said that the appellant, in the case in hand, was once in jeopardy at or before the discharge of the first jury, empanelled and sworn to try the issues in the case, then it must be held that the subsequent proceedings in the cause were had in palpable violation of the appellant's constitutional rights, and were consequently erroneous. The general rule is, no doubt, that the defendant in a criminal case is in jeopardy when the jury are properly empanelled and sworn to try the issues in the cause. Like other general rules, however, this one has its exceptions. Thus, in 1 Bishop Crim. Law, section 1032, it is said: See, also, 1 Bishop Crim. Procedure, section 948, where it is said that if, during a trial, a juror becomes too sick to proceed, the panel may be discharged and the cause retried before another jury at the same or a subsequent term. This court has recognized the doctrine that the sickness of a juror during the trial and before a verdict is a sufficient cause for discharging the jury, and that, upon such discharge, a venire de novo may be issued, and the defendant may be put on his trial anew, on the same indictment, at the same or a subsequent term. Rulo v. State, 19 Ind. 298; Vanderkarr v. State, 51 Ind. 91.
We are of opinion, therefore, that there is no error in the action of the court of which the appellant complains in his first three causes for a new trial.
Appellant's counsel next consider in argument the questions presented by the fourth, sixth and seventh causes assigned in the motion for a new trial. Counsel first insist, under these causes for a new trial, that the court below erred in permitting the State, over the appellant's objections, to introduce to the court, in the presence and hearing of the jury, its preliminary proof, for the purpose of showing that certain dying declarations, which the State proposed to put in evidence, were made by the deceased while in extremis, and under a solemn sense of his impending dissolution; in other words, it is claimed by counsel that this preliminary proof, which was addressed to the court alone, and was not intended for the ear of the jury, ought not to have been presented to the court in the hearing of the jury, because of its supposed injurious effect on the minds of the jurors as against the appellant. Counsel cite no authority in support of this claim, and we know of none; and while we think there would have been no impropriety in the court's sending the jury out during the introduction of the preliminary proof, yet its refusal so to do does not seem to us to have constituted such an error as would authorize or require the reversal of...
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