Jones v. State, 4922

• Decision Date: 09 February 1959
• Docket Number: No. 4922,4922
• Citation: 320 S.W.2d 645,230 Ark. 18
• Parties: Hiram 'Jimmie' JONES, Jr., Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 645

320 S.W.2d 645

230 Ark. 18

Hiram 'Jimmie' JONES, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. 4922.

Supreme Court of Arkansas.

Feb. 9, 1959.

Sam L. Anderson and Earl J. Lane, Hot Springs, for appellant.

Bruce Bennett, Atty. Gen., and Ben J. Harrison, Asst. Atty. Gen., for appellee.

McFADDIN, Justice.

Two issues are presented on this appeal: one is the plea of former jeopardy; and the other is the appealability of the judgment refusing to discharge the accused.

Information was duly filed, charging the appellant, Hiram 'Jimmie' Jones, Jr., with the crime of first degree murder for the homicide of George Stockton, Jr. The trial commenced in the Circuit Court on October 7, 1957; eleven jurors were selected that day; on October 8th the jury was completed and sworn to try the case (§ 43-2109 Ark.Stats.); and two witnesses were examined. The first witness, Lt. Joe Campbell of the Hot Springs Police Force, testified that he and Joe Dodd, a fellow officer, received a call to go to the Flamingo Club; that when they arrived they found Mrs. James was there; that they found the body of George Stockton near the bar; that Officer Campbell instructed Officer Dodd to call an ambulance; that Campbell called the Coroner and Chief of Police; that the Chief of Police arrived with other officers; that Campbell found four bullet slugs at various places in the club room; that he turned the bullet slugs over to an FBI Agent to send to Washington, D. C. to discover the calibre; and that after a brief inquiry of Mrs. James she was escorted to her apartment by Officer Dodd. Officer Joe Dodd of the Hot Springs Police Force testified to substantially the same effect as did Lt. Joe Campbell; and the Court adjourned until the next morning.

On October 9, 1957 Mr. Hebert, the Prosecuting Attorney, announced to the Court that he had just learned that one of the jurors--Mrs. Ensminger--was a sister of the witness, Joe Campbell. ¹ For that reason the State moved for a mistrial; and here is the record:

'Mr. Hebert: * * * It is therefore moved by the State of Arkansas, in view of the development here, that the court declare a mistrial.

'The Court: Mr. Hebert, do you consider the possibility of double jeopardy?

'Mr. Lane: The defendant resists the motion of the State and wishes to state for the record that the defendant is perfectly satisfied with the juror, Mrs. Joe Ensminger.

'Mr. Hebert: The State is also satisfied with the juror but the State feels that under the law that she would be an incompetent juror.

'The Court: In view of the position of the State in the matter the court will grant the motion and will declare a mistrial. * * *

'Mr. Lane: Let the record show that the defendant objects to the ruling of the court declaring a mistrial and asks that our exceptions be noted of record for the reason that, as the court has mentioned, the testimony of Mr. Campbell was not controverted, and he knew nothing about the actual fact of the alleged murder and did not testify with regard to that. * * *

'Mr. Lane: I move that the court turn the defendant loose on the grounds that he has been placed in jeopardy. The jury has been sworn in, testimony has been presented to the court and jury against him and he has been placed in jeopardy, and of course one of our oldest laws is that a man cannot twice be placed in jeopardy for the same crime. * * *'

The Court declared a mistrial on October 9, 1957; but did not rule on the jeopardy plea at that time. Then, on April 1, 1958, the following occurred in Court:

'The Court: The matter coming on for hearing at this time is the case of the State of Arkansas v. Hiram Jimmie Jones, Jr., No. 10,550, in which case the defendant is charged with murder in the first degree. The defendant has filed a motion which has been set for hearing at this time. The motion being for a dismissal of the Information upon the ground of double jeopardy. * * *

'Stipulation: It is hereby agreed and stipulated by and between counsel for the State of Arkansas and counsel for the defendant that the defendant's case has been set for trial on April 8, 1959, and that he is to be tried on the same Information charging him with the crime of murder in the first degree that he was tried on, on October 7, 1957, which resulted in the Court declaring a mistrial.'

The Court then overruled the appellant's plea of former jeopardy and denied the motion to discharge the accused; and from that order there is this appeal, presenting the two questions first mentioned in this opinion.

I. The Plea of Former Jeopardy. Article 2, Section 8 of the Arkansas Constitution says: '* * * and no person, for the same offense, shall be twice put in jeopardy of life or liberty. * * *. ² ' In 15 Am.Jur. 38 'Criminal Law' § 359 et seq., the text reads:

'It is an established maxim of the common law, in the administration of criminal justice, constantly recognized by elementary writers and courts of judicature from a very early period down to the present time, 'that a man shall not be brought into danger of his life or limb for one and the same offense more than once.' It has been said that the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. * * * The right not to be put in jeopardy a second time for the same cause is as important as the right of trial by jury and is guarded with as much care. Accordingly, there will be found in the Constitution of the United States and in the Constitutions of most of the states a provision that no person shall for the same offense be twice put in jeopardy, which, however, is only a recognition of the common-law rule.'

We have a number of cases on this very important constitutional right against double jeopardy. In Whitmore v. State, 43 Ark. 271, decided in the November term of 1884, Justice William W. Smith said:

'Sec. 8, in the Declaration of Rights, Constitution of 1874, authorizes the court in its discretion, to discharge a jury, in case of their inability to agree upon a verdict after a reasonable time for deliberation. And cases of overruling necessity for their discharge without verdict may sometimes arise, such as the illness or death of the presiding judge or of a juror. Atkins v. State, 16 Ark. 568. But the general rule is, that the discharge of a jury, after the machinery of the court is fully organized for trial and judgment, without the consent of the defendant expressed or implied, operates as an acquittal. * * *

'This court has, heretofore, drawn the line where jeopardy begins at the swearing in of the jury to try the issue. And this is in according with the overwhelming weight of authority and with the best considered cases. If, after that, the jury is discharged without an obvious necessity and without the defendant's consent, express or implied, he cannot be again placed upon trial for the same offense, where life or liberty is involved.'

When the jury is finally sworn to try the case (§ 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 the constitutional right against double jeopardy may be invoked, except only in cases of 'overruling necessity'. Some cases illustrating what is meant by 'overruling necessity' are these: Franklin v. State, 149 Ark. 546, 233 S.W. 688, wherein it was discovered that one of the jurors had previously formed and expressed an opinion of the guilt of the accused; Martin v. State, 161 Ark. 423, 256 S.W. 367, wherein one of the trial jurors announced that he had been a member of the Grand Jury that returned the indictment; Martin v. State, 163 Ark. 103, 259 S.W. 6, 33 A.L.R. 133, wherein one of the jurors announced that he had been a juror in the former trial of the case; and Harris v. State, 177 Ark. 186, 6 S.W.2d 34, wherein it was learned that one of the jurors was on the appearance bond of the defendant.

In each of the above discussed cases there was a real reason--i. e. 'overruling necessity'--to discharge the jury; and we held that the rule against double jeopardy had not been violated in those cases. ³ But, in the case at bar, there was no sound reason for discharging the jury, and there was certainly no 'overruling necessity'. The relationship of a juror to a witness in the trial does not per se disqualify the juror. ⁴ Arnold v. State, 150 Ark. 27, 233 S.W. 818. Officer Campbell's testimony was practically the same...