State v. Kinghorn
Decision Date | 01 December 1909 |
Court | Washington Supreme Court |
Parties | STATE v. KINGHORN. |
Department 1. Appeal from Superior Court, Snohomish County; W. W. Black Judge.
Cliff Kinghorn was convicted of rape, and he appeals. Reversed with directions.
E. C Dailey, for appellant.
The appellant was tried, convicted, and sentenced upon an information charging him with having committed statutory rape. After the jury had been impaneled and sworn to try the case, and the state had sworn the prosecutrix as a witness, and had commenced interrogating her, the appellant objected to the introduction of any further evidence, and moved to dismiss the case because he had not been arraigned, and had not pleaded to the information. The motion having been denied, the appellant was arraigned under the order of the court, and entered a plea of not guilty. Thereupon, on the motion of the state, the jury was discharged, and an exception reserved by the appellant. Another jury was thereupon impaneled and sworn to try the case. The appeal is prosecuted from a judgment entered upon the verdict of the latter jury.
After the second jury had been impaneled and sworn, the appellant entered a further plea of former jeopardy. The Constitution (article 1, § 9) provides that no person shall be twice put in jeopardy for the same offense. The appellant contends that the judgment violates this provision of our Constitution. There is a division of authority on the question as to when the period of jeopardy begins, but we think the better rule, and the one supported by the decided weight of authority, is that, when the accused has been placed upon trial in a court of competent jurisdiction on a sufficient indictment, before a jury legally impaneled and sworn, the constitutional peril has attached, and that a discharge of the jury without good cause, and without the consent of the accused, is equivalent to an acquittal. 1 Bishop's New Crim. Law, § 1015. 'Though the jury has been impaneled and sworn, there is still no jeopardy, therefore no bar to second proceedings, unless the court is so clothed with authority and the prior proceedings are such that a judgment upon a verdict duly returned will be valid.' Id. § 1020. This view is recognized in State v. Lee Doon, 7 Wash. 308, 34 P. 1103, and in State v. Hubbell, 18 Wash. 482, 51 P. 1039, and by the following cases from other jurisdictions: Lee v. State, 26 Ark. 260, 7 Am. Rep. 611; State v. Walker, 26 Ind. 346; People v. Barret and Ward, 2 Caines, 100; Commonwealth v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542. The other view, that jeopardy begins only after verdict rendered, is condemned by Bishop as unsound in principle. He declares that the effect of such a holding is to make the Constitution read that no man shall be twice 'tried' for the same offense, thus confounding the danger or jeopardy of the thing and the thing itself. 1 Bishop's New Crim. Law, § 1018.
We next inquire whether there was good cause for discharging the jury. Had anything then occurred or been omitted which would have rendered a judgment erroneous on a verdict of guilty? We think not. When the appellant had been arraigned and...
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State v. Brunn
...in the last sixty or seventy years cite it as authority, and often the sole authority, for the decision rendered. The rule cited in the Kinghorn case, and immediately followed quotations from Bishop, is as follows: 'There is a division of authority on the question as to when the period of j......
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State v. Connors
...the possibility of an exercise of reasonable discretion in the matter by the trial court. In the case of State v. Kinghorn (1909), 56 Wash. 131, 105 P. 234, 27 L.R.A., N.S., 136, a jury was impaneled and sworn and the prosecuting witness called to the stand. After preliminary questions were......
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State v. George
... ... competent jurisdiction on a sufficient indictment before a ... jury regularly impaneled and sworn, and that a discharge of ... the jury without due cause and without consent of the accused ... is an acquittal. State v. Kinghorn, 56 Wash. 131, ... 105 P. 234, 27 L. R. A. (N. S.) 136, can have no application ... under the plain words and terms of Rem. & Bal. Code, § 2113, ... which provides: ... 'A conviction or acquittal by a judgment upon a ... verdict shall bar another prosecution for the ... ...
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State v. Nilnch
...already been said by this court in State v. Straub, 16 Wash. 111, 47 P. 227; State v. Sexton, 37 Wash. 110, 79 P. 634; State v. Kinghorn, 56 Wash. 131, 105 P. 234, 27 R. A. (N. S.) 136, and State v. Garland, 65 Wash. 666, 118 P. 907, is sufficient answer to appellant's argument, and further......