State ex rel. Meador v. Williams

• Decision Date: 02 January 1906
• Parties: STATE ex rel. MEADOR et al., Relators, v. WILLIAMS, etc., et al., Respondents
• Court: Missouri Court of Appeals

92 S.W. 151

117 Mo.App. 564

STATE ex rel. MEADOR et al., Relators, v. WILLIAMS, etc., et al., Respondents

Court of Appeals of Missouri, St. Louis

January 2, 1906

WRIT DENIED.

GOODE J. Bland, P. J., and Nortoni, J., concur.

OPINION

Original Proceeding, Prohibition.

GOODE J.--

An order was issued by one of the Judges of this court directed to the Honorable Joseph J. Williams, Judge of the Twenty-First judicial circuit of the State, and Almon Ing, Prosecuting Attorney of Wayne county, commanding the respondents to appear before this court in term time, to-wit, December 12, 1905, at 10:30 a. m. and show cause why a writ of prohibition should not issue, restraining further proceedings against relators in a criminal case pending in the circuit court of said county. It appears from the allegations of the petition for the writ, that at the February term, 1905, of the Wayne Circuit Court, relators had been indicted for gambling with dice and at the August term ensuing, were arraigned on said charge and pleaded not guilty. The cause came on for trial and both the State and relators announced ready. Thereupon a jury of twelve good and lawful men from the body of the county, was impaneled, qualified and sworn to try the issues and render a true verdict, according to the law and the evidence. Afterwards, the trial proceeded before the jury until the prosecuting attorney of the county, representing the State of Missouri, had put on the stand and examined four witnesses. At the conclusion of the testimony of these witnesses, the prosecuting attorney by leave of court, stopped the trial and withdrew the submission of the cause from the consideration of the jury. This action was taken because of the absence of a witness for the State on whose testimony the indictment had been found and who had failed to attend the trial although subpoenaed. The cessation of the trial and the withdrawal of the submission of the cause from the jury, were not made necessary either by the sickness or other disability of any juror, or of the judge of the court, and were done against the objection and over the protest of the defendants, who saved an exception at the time. Afterwards, during the same terms of the court, and on the 14th day of August, relators filed in said circuit court, a motion for their discharge from further proceedings under the indictment against them, on the ground that they had been put in jeopardy by a trial in which they might have been legally convicted and punished. On the 21st day of August, the prosecuting attorney filed an application for a continuance of the cause to the next regular term of the court because of the absence of the aforesaid witness. This application the court sustained and continued the cause until the February term, 1906, to which ruling the relators, as defendants in said criminal case, excepted. The purpose of this proceeding is to prohibit the circuit court of Wayne county and the prosecuting attorney from going further in the prosecution of relators on the charge of gambling. The petition filed here fails to state what ruling was made on the motion of relators for their discharge; but a duly certified copy of the record of the proceedings in the gambling case which is attached to the petition herein in support of its averments, shows the motion was overruled. The transcript shows too that all of the allegations in the petition are true, as above recited. Beyond doubt relators were entitled to be discharged on their motion. They were put in jeopardy when the jury was impaneled and sworn, as the indictment was good and the circuit court had jurisdiction of the offense. [State v. Snyder, 98 Mo. 555, 12 S.W. 369; State v. Wiseback, 139 Mo. 214, 40 S.W. 946; Ex parte Snyder, 29 Mo.App. 256; Cooley on Const. Lim. (7 Ed.), 467.] The elementary work just cited states the law on the point in question as follows:

"A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged, when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause."

The doctrine of that text is supported by numerous citations and has been directly approved by the courts of this State. [Ex parte Snyder and State v. Snyder, supra.] Any judgment or conviction which may be entered against defendants on the indictment on which they were formerly brought to trial would not be permitted to stand and none ought to be entered. Relators should be discharged as soon as the circuit court convenes. Nevertheless, it is our opinion that prohibition will not lie to restrain further proceedings against them. As said above, the circuit court of Wayne county has jurisdiction of the particular cause and jurisdiction of its subject-matter. To proceed further against defendants would be exercising...