State v. Little, 8730.
| Decision Date | 07 June 1938 |
| Docket Number | No. 8730.,8730. |
| Citation | 197 S.E. 626 |
| Court | West Virginia Supreme Court |
| Parties | STATE. v. LITTLE. |
Syllabus by the Court.
1. When an accused pleads not guilty to a valid indictment and a jury is sworn to try the issue thereby raised, jeopardy begins, subject to Code, 62-3-7, which provides " * * * in any criminal case the court may discharge the jury when it appears that they cannot agree on a verdict or that there is manifest necessity for such discharge." If a jury, without rendering a verdict, is discharged, in conformity with the statute, jeopardy is set at naught.
2. The "manifest necessity" in a criminal case permitting the discharge of a jury without rendering a verdict may arise from various circumstances. Whatever the circumstances, they must be forceful to meet the statutory prescription.
3. The power of a court in a criminal case to discharge a jury without rendering a verdict is discretionary; but the power "is a delicate and highly important trust" and must be exercised soundly, else the discharge will become in effect an acquit-tal of the accused under the Constitution, Article 3, Section 5, which inhibits second jeopardy.
4. When, in a criminal trial, the state moves that the jury be discharged without rendering a verdict and the accused objects, the burden is on the state to justify the discharge.
Error to Circuit Court, Kanawha County.
O. C. Little was convicted of a felony, and he brings error.
Judgment reversed and rendered.
B. T. Clayton, of Winfield, and R. Dennis Steed, of Charleston, for plaintiff in error.
Clarence W. Meadows, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for the State.
Upon an indictment for a felony, O. C. Little pleaded not guilty and a jury was sworn to try him. Before evidence was taken, the noon hour having arrived, the state's witnesses were excused until 1:30 P. M. At that hour they did not return. Their absence continuing until 2 P. M., the prosecuting attorney moved that a juror be withdrawn and a mistrial declared. The accused objected. The court granted the motion for the reason as shown by the record, that " * * * the court officers have not been advised as to whether these witnesses will return today, or at any other time, or what is delaying their attendance." At a subsequent term the accused was again arraigned. He pleaded former jeopardy; his plea was overruled; he was then tried, convicted and sentenced.
The Constitution, Article 3, Section 5, declares "No person shall be * * * twice put in jeopardy of life or liberty for the same offence." When an accused pleads not guilty to a valid indictment and a jury is sworn to try the issue thereby raised, jeopardy begins. 1 Bishop, Cr.Law (9th Ed.), sec. 1014. However, Code, 62-3-7, provides "* * * in any criminal case the court may discharge the jury, when it appears that they cannot agree in a verdict, or that there is manifest necessity for such discharge." If a jury, without rendering a verdict, is discharged in conformity with the statute, jeopardy is set at naught. State v. Shelton 116 W.Va. 75, 81, 178 S.E. 633. The word "manifest" has been defined "To put beyond question of doubt." Russell v. State, 71 Fla. 236, 71 So. 27, 28. "That is manifest...
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