People v. Gardner

Citation29 N.W. 19,62 Mich. 307
CourtSupreme Court of Michigan
Decision Date01 July 1886
PartiesPEOPLE v. GARDNER.

The Attorney General, for the People.

Van Zile & Fox and Clement Smith, for respondent.

CHAMPLIN, J.

The defendant was convicted of the crime of embezzlement. A jury having been impaneled and sworn, a witness was called on behalf of the people, and thereupon counsel for the prisoner objected to the introduction of any testimony on the ground that the information filed in the cause was sworn to before the law partner of the prosecuting attorney. The court, to obviate any objection, directed the prosecuting attorney to verify the information before the clerk of the court, which was done. The court then directed the prisoner to be again arraigned upon the same information. This was objected to by respondent's counsel because he had once been in jeopardy for the same offense. The prisoner was ordered by the court to stand up, and was arraigned, but refused to plead, and thereupon the court directed the plea of not guilty to be entered. The court then inquired of counsel for respondent if he had any objections to the jury then in the box. The counsel for respondent replied that this was a new issue that the information should have been sworn to before the clerk, and the defendant rearraigned, and another plea entered; that this was not a jury in this case. The following colloquy then ensued; "Court. I infer from your objection that you wish a new jury. Have you any objection to the jury as it exists? Defendant's Counsel. We don't wish anything about it. We want to save the point. We claim that this is a jury that was called in another issue; that the information being sworn to, and the defendant rearraigned, and another plea entered, it is another issue and that this jury have been called in the issue that is now being tried. As I understand the ruling of the court, I don't think we object to this jury. Court. I give you the option of having this jury stand aside, and another one called, or call this jury, [the jury impaneled being still in the box.] Defendant's Counsel. We object to this jury. Court. You wish them to stand aside. Defendant's Counsel. I suppose so." Whereupon the said court discharged the said jury from the case, and directed the clerk of said court to put all the jury-slips back again in the jury-box. And thereupon the said court ordered and directed the said clerk of said court to call another jury. And the same having been called, and the counsel for the people having announced that they were content with the said second jury so called, the court said: "Court. Defense any further objection? Defendant's Counsel. If your honor please, we, objecting to the calling of a jury in this case do not desire now to do anything by which it may be said that we have waived any objections, or accepted the jury. Therefore we have nothing to say. Court. Swear the jury. Defendant's Counsel. We object to the swearing of the jury. Court. Let the record show that at every stage of the proceeding where there is an objection, there is an exception." The jury were thereupon sworn, and the respondent's counsel thereupon renewed his motion to discharge the prisoner for the reason that the prisoner had already been in jeopardy, and he objected to respondent being again put upon trial for the same offense which was overruled, and the trial proceeded, and resulted in conviction.

The objection made by the respondent to the information for the reason that it was verified before the law partner of the prosecuting attorney was without merit at that stage of the proceeding, and should have been overruled. Lambert v People, 29 Mich. 70. This is conceded by the counsel for respondent; and he says: "Had the court, upon overruling the objection of counsel to the verification of the information, ordered the prosecuting attorney to verify before the clerk of the court, and then, at that juncture of the case, proceeded with the trial, we think he would not have exceeded his discretion. But, not stopping there, he orders the rearraignment of the defendant; and then, after this has been done, and the defendant has waived objection to the jury as it then stood, but intimating that he should raise an objection so as to place on the record the facts as they occurred, he is compelled by the court to elect between the calling of the jury already called and impaneled or the calling of another jury." It...

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11 cases
  • People v. Anglin
    • United States
    • Court of Appeal of Michigan — District of US
    • May 23, 1967
    ...judge, People v. Taylor (1898), 117 Mich. 583, 76 N.W. 158; People v. Tillard (1947), 318 Mich. 619, 29 N.W.2d 111; People v. Gardner (1886), 62 Mich. 307, 29 N.W. 19. From these cases, certain principles are clear. A defendant cannot be in jeopardy until a jury is impaneled and sworn. Peop......
  • Ex parte Earle, 221.
    • United States
    • Michigan Supreme Court
    • December 2, 1946
    ...Counsel for petitioner relies on People v. Jones, 48 Mich, 554, 12 N.W.2d 848;People v. Harding, 53 Mich. 481, 19 N.W. 155;People v. Gardner, 62 Mich. 307, 29 N.W. 19;People v. Taylor, 117 Mich. 583, 76 N.W. 158;In re Ascher, 130 Mich. 540, 90 N.W. 418,57 L.R.A. 806;People v. Parker, 145 Mi......
  • People v. Johnson
    • United States
    • Court of Appeal of Michigan — District of US
    • January 3, 1980
    ...on the principal charge. People v. Stratton, supra. Jeopardy attached when the jury was initially impaneled and sworn. People v. Gardner, 62 Mich. 307, 29 N.W. 19 (1886), People v. Williams, 85 Mich.App. 258, 271 [94 MICHAPP 556] N.W.2d 191 (1978). For the trial court to dismiss the jury on......
  • Carroll v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 12, 1906
    ...Peiffer v. Com., 15 Pa. 468, 53 Am. Dec. 605; State v. Davis, 80 N. C. 384; People v. White, 68 Mich. 648, 37 N. W. 34; People v. Gardner, 62 Mich. 307, 29 N. W. 19; Com. v. Sholes, 13 Allen (Mass.) 554; State v. Wamire, 16 Ind. 357; McCorkle v. Com., 14 Ind. 39; Hughes v. State, 35 Ala. 35......
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