Miller v. State

Citation8 Ind. 298
Case DateDecember 09, 1856
CourtSupreme Court of Indiana

From the Tippecanoe Circuit Court.

The appeal is dismissed with costs.

W. F Lane and E. A. Greenlee, for appellant.


Perkins J.

Miller was indicted for grand larceny--was arraigned, put upon trial, and his cause was given to the jury. After the jury had been out twelve hours they returned into Court and stated that they could not agree. The Court asked the counsel what they had to say about the discharge of the jury, and they replied, nothing. The prisoner was not brought up from jail nor consulted. The Court, of its own motion, then discharged the jury, and the defendant's counsel excepted, and interposed a motion for the discharge of the prisoner, on the ground that the discharge of the jury operated as an acquittal to him; but the Court overruled the motion, and ordered the prisoner to remain in custody for trial at a subsequent term, by another jury. The counsel excepted. The then term was not nearing its termination.

The prisoner appealed to this Court.

The cause not having been brought to final judgment, was not appealable to this Court. Newell v Gatling, 7 Ind. 147; Farrel v State, 7 Ind. 345; Branham v. Fort Wayne, etc., R. R. Co., 7 Ind. 524. But as we have no doubt upon the point of law involved, and much future trouble, and perhaps, hardship, in the cause will be saved by its decision, we proceed to make it.

The constitution of this State provides that--"No person shall be put in jeopardy twice for the same offense;" and the decision of this cause depends upon the construction to be put upon the provision.

The courts of Pennsylvania, Virginia, North Carolina, Tennessee, and Alabama, differ from those of the United States, New York, Massachusetts and Mississippi, as to the meaning of the constitutional provision in question. The latter courts understand it to mean that a person shall not be twice tried. The former courts consider the hazard, danger, or peril in which a man shall not be twice placed, as having been once incurred by giving him in charge, on a legal indictment, to a regular jury, which has been unnecessarily discharged without rendering a verdict. And this latter is the interpretation which the courts of Indiana have given to the provision. Weinzorpflin v. State, 7 Blackf. 186.--Wright v. State, 5 Ind. 290.

The courts above named which hold that being once in jeopardy is being once tried, hold that a discharge of the jury, in the discretion of the court, without rendering a verdict, is no bar to a subsequent prosecution. While the courts which hold that being once in jeopardy is being put upon trial, or etc., hold that courts cannot, in their discretion, discharge the jury to whom the cause of the prisoner has been...

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