Roberts v. State

• Decision Date: 13 May 1895
• Citation: Roberts v. State, 72 Miss. 728, 18 So. 481 (Miss. 1895)
• Court: Mississippi Supreme Court
• Parties: SAM ROBERTS v. THE STATE

18 So. 481

72 Miss. 728

SAM ROBERTS v. THE STATE

Supreme Court of Mississippi

May 13, 1895

March 1895

From the circuit court of Lincoln county, HON. J. B. CHRISMAN Judge.

Appellant was convicted of murder, and sentenced to imprisonment for life. His appeal presents a single question. After appellant had pleaded not guilty and a jury had been impaneled pronounced qualified and been accepted, and a witness for the state had been examined in chief and was being cross-examined, a juror stated to the court, that he had just recollected that he was on the grand jury that had returned the indictment, and he had heard the evidence in the case, as presented to the grand jury. Thereupon, at the request of counsel for defendant, the court took a recess, and, on reassembling, the district attorney moved the court to discharge the juror as incompetent. The court then asked counsel for the prisoner if he had anything to say. Counsel having responded in the negative, the court announced that if the defendant objected it would not exclude the juror. Counsel for defendant responded: "We have nothing to say," and, thereupon, the court announced that, in the absence of any objection on the part of defendant, it would sustain the motion and discharge the juror, and the juror was set aside. Counsel for accused then moved the court for final discharge, on the ground that he had already been placed in jeopardy. This motion was denied, and the court, after substituting another juror, proceeded with the trial. Defendant was convicted, and appeals.

Affirmed.

Cassedy & Cassedy and A. C. McNair, for appellant.

The motion for a discharge was undoubtedly good, and should have been sustained, unless § 22, const. 1890, changes the settled doctrine heretofore prevailing in this state. That doctrine is that jeopardy begins when the prisoner is arraigned under a valid indictment in a court of competent jurisdiction and he has pleaded not guilty and a jury is impaneled and sworn to try the issue joined. Any discharge of the jury without a legal necessity also discharges the prisoner. Teat v. State, 53 Miss. 439; Whitten v. State, 61 Ib., 717; Helm v. State, 66 Ib 537, If the latter clause of the section of the constitution is to be construed as meaning that nothing will bar a second prosecution but a verdict of acquittal or conviction after a full hearing of all the evidence, then the whole section becomes a useless piece of verbiage so far as securing any right to the citizen that was not already enjoyed. The first clause is useless, because nullified by the last, and the last only recognizes a right already existing by the common law, and unnecessary to be mentioned at all, unless, perhaps to guard against a repeal of the common law immunity from a second prosecution. If this was the purpose, why incorporate in the section the first clause, the meaning of which, from frequent judicial interpretation, was well understood to be utterly in conflict with the latter? If nothing but an actual conviction or acquittal will bar a second prosecution, the trial court may, without limit, experiment with the life or liberty of a citizen charged with crime. Successive juries, after the evidence is submitted and arguments made, before retiring from the jury box, might be discharged without reason and without limit. Such a construction was never intended by the framers of the constitution. A construction, if possible, should be given the section that will harmonize all its parts. This may be done by interpreting the word "merits," in the latter clause, to mean matter of substance in law, as distinguished from matter of form a substantial ground of defense in...