Loyd v. State
| Decision Date | 06 June 1911 |
| Citation | 116 P. 959,6 Okla.Crim. 76,1911 OK CR 255 |
| Parties | LOYD v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where a defendant is put upon trial in a court of competent jurisdiction upon an indictment or information sufficient to sustain a conviction, and the jury has been impaneled and sworn to try the case, and the jury is unnecessarily discharged without the defendant's consent before they arrive at a verdict, such discharge operates as an acquittal of the defendant.
A defendant cannot twice be put in jeopardy of life and liberty for the same offense, but before jeopardy attaches each of the following conditions must exist: First, the defendant must be put upon trial before a court of competent jurisdiction; second, the indictment or information against the defendant must be sufficient to sustain a conviction third, the jury must have been impaneled and sworn to try the case; fourth, after having been impaneled and sworn the jury must have been unnecessarily discharged by the court; fifth such discharge of the jury must have been without the consent of the defendant. When these things concur, then the discharge of the jury constitutes jeopardy and operates as an acquittal of the defendant, and he cannot again be placed upon trial for the same offense.
Where a defendant is charged with murder, the crime, if any, is complete when the fatal blow is struck or the fatal shot is fired, and the district or superior court of such county has jurisdiction to try said offense; and it is altogether immaterial as to whether or not the deceased died in such county, and the place of the death of the deceased need not be alleged, and, if alleged, such allegation would be surplusage and need not be proven as alleged.
Where a plea of former jeopardy has been filed and does not involve a disputed question of fact, but merely presents a question of law for the determination of the court, it is not necessary to submit such plea to the consideration of the jury, but the court should pass upon the question of law presented, and either sustain the plea and discharge the defendant, or overrule the plea and place the defendant upon trial upon the merits of said cause.
Appeal from District Court, Jefferson County; Roy Hoffman, Judge pro tem.
B. M Loyd was convicted of manslaughter, and he appeals. Reversed.
Jones & Green, and D. D. Hartsell, for appellant.
Smith C. Matson, Asst. Atty. Gen., for the State.
It appears from the record in this case that at the January 1909 term of the district court of Jefferson county, Okl., the defendant was placed regularly on trial in said court, charged with the murder of Ed Henson, alleged to have been committed in said Jefferson county, and that the jury were selected, impaneled and sworn, and counsel for the state and counsel for the defendant made their opening statements, and that Charlie Pickett, a witness for the state, was sworn and placed upon the stand, when the county attorney informed the court that he had discovered an error in the information which alleged that deceased had died in Jefferson county, Okl., when as a matter of fact the deceased, after receiving the fatal wound in Jefferson county, had been carried to El Reno, in Canadian county, for the purpose of being operated upon, and that the deceased died in Canadian county.
Whereupon the county attorney requested the court to be permitted to amend the information by stating that the deceased died in Canadian county, state of Oklahoma. Defendant objected to this motion of the county attorney, and requested the court to instruct the jury to return a verdict of not guilty. The court overruled the motion to instruct the jury to acquit the defendant, and sustained the motion of the county attorney to amend the information. The court withdrew the case from the consideration of the jury and discharged them, and remanded defendant to the custody of the sheriff of Jefferson county, Okl., and set the case for hearing on a future day of the term, to all of which the defendant at the time excepted. The case came on to be heard again at the October, 1910, term of the district court of Jefferson county. Whereupon the defendant entered a plea of former jeopardy in which he alleged that he had already been placed in jeopardy on a valid indictment before a court of competent jurisdiction, and that a jury was impaneled and sworn and charged with his deliverance, which said jury was over his objection discharged, and that this was for the identical offense of which he is now charged. This plea set forth in detail the proceedings had upon the former trial of this cause. The state did not reply to the plea of former jeopardy. Therefore the allegations therein set forth were admitted to be true, and it was the duty of the court to pass upon the questions of law which were thus presented. The trial court overruled said plea of former jeopardy, to which the defendant at the time excepted. The defendant then declined to plead further in this case. Thereupon the court ordered that the plea of not guilty be entered for him, and the trial of the cause was proceeded with. By overruling the plea of former jeopardy, the court held that the matters of fact therein set forth did not constitute a bar to the further prosecution of the appellant for the same offense. If the trial court had been correct in holding upon the first trial that the information alleging that the fatal wound was inflicted in Jefferson county, and that the deceased died in said Jefferson county, and that a conviction could not be sustained upon proof that deceased had died in Canadian county, then the action of the trial court in discharging the jury without defendant's counsel would not have constituted jeopardy, and the defendant might have been legally tried upon a proper information or indictment for the same offense. But if the trial court was in error upon this question, then as a question of law, upon the second trial of appellant, the trial court should have held that the plea of former jeopardy was good and was a complete bar to a second prosecution of appellant for the same offense. This is not an open question in Oklahoma. In the case of Schrieber v. Clapp, 13 Okl. 218, 74 P. 317, Judge Burford, speaking of the Supreme Court of Oklahoma Territory, said:
This question is discussed with great ability and at great length and all of the authorities are cited in the case of Gillespie v. State, 168 Ind. 316, 80 N.E. 835. After a full discussion of the entire matter, that court announces its conclusions as follows: "The following cases and authorities are in harmony with our own decisions, as they hold or affirm the doctrine that in a criminal prosecution the unnecessary discharge of the jury, after it had been impaneled and sworn, without the consent of the defendant, operates as an acquittal. Commonwealth v. Fitzpatrick (1888) 121 Pa. 109, 15 A. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757; State v. Callendine (1859) 8 Iowa, 288; Hines v. State (1873) 24 Ohio St. 134; Helm v. State (1889) 66 Miss. 537, 6 So. 322; State v. McKee (1830) 1 Bailey (S. C.) 651, 21 Am. Dec. 499, and cases cited in notes; State v. Robinson (1894) 46 La. Ann. 769, 15 So. 146; Robinson v. Commonwealth (1889) 88 Ky. 386, 11 S.W. 210; People v. Cage (1874) 48 Cal. 323, 17 Am. Rep. 436; Ex parte Clement (1873) 50 Ala. 459; Bell v. State (1870) 44 Ala. 393; Ex parte Maxwell (1876) 11 Nev. 428; Whitmore v. State (1884) 43 Ark. 271;
Ward v. State (1839) 1 Humph. (Tenn.) 253; O'Brian v. Commonwealth (1872) 9 Bush (Ky.) 333, 15 Am. Rep. 715; State v. Richardson (1896), 47 S.C. 166, 25 S.E. 220, 35 L. R. A. 238; Hilands v. Commonwealth (1887) 114 Pa. 372, 6 A. 267; State v. Sommers (1895) 60 Minn.
90, 61 N.W. 907; Scrieber v. Clapp (1903) 13 Okl. 215, 74 P. 316; People v. Dolan (1883) 51 Mich. 610, 17 N.W 78; Ex parte Tice (1897) 32 Or. 179, 49 P. 1038; State v. Steeves (1896) 29 Or. 85, 43 P. 947; People v. Taylor (1898) 117 Mich. 583, 76 N.W. 158; Commonwealth v. Tuck (1838) 20 Pick. (Mass.) 356; Kepner v. United States (1904) 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114; Allen v. State (1906) , 41 So. 593 , and authorities cited; Lee v. Smith (1870) 26 Ark. 260, 7 Am. Rep. 611; McDonald v. State (1891) 79 Wis. 651, 48 N.W. 863, 24 Am. St. Rep. 740, and authorities cited; People v. Ny Sam Chung (1892) 94 Cal. 304, 29 P. 642, 28 Am. St. Rep. 729; Gillett, Crim. Law (2d...
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Randolph v. State Of Okla.
... ... Sussman v. The District Court of Oklahoma County, 1969 OK CR 185, 455 P.2d 724 (granting pre-trial writ of prohibition); ... Barnhart v. State, 1977 OK CR 18, 559 P.2d 451 (reviewing former jeopardy claim following subsequent trial). ¶ 8 In ... Loyd v. State, 1911 OK CR 255, 6 Okla.Crim. 76, 116 P. 959, Judge Furman set out the essential facts which determine whether a discharge of the trial jury operates as an acquittal: First. The defendant must be put upon trial before a court of competent jurisdiction. Second. The information or ... ...
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State v. Mosley.
...that this Court had been applying this doctrine since statehood and quoted the following language, from Loyd v. State, 1911 OK CR 255, 6 Okla.Crim. 76, 116 P. 959, as summarizing the rule for determining when the grant of a mistrial functions as an “acquittal” of the defendant: First. The d......