State v. Robinson

• Decision Date: 01 April 1894
• Docket Number: 11,525
• Citation: 46 La.Ann. 769,15 So. 146
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. BOB ROBINSON

15 So. 146

46 La.Ann. 769

STATE OF LOUISIANA v. BOB ROBINSON

No. 11,525

Supreme Court of Louisiana

April 1, 1894

APPEAL from the Sixth District Court, Parish of Richland. Ellis J.

M. J Cunningham, Attorney General, for the State, Appellee.

Robt. Whetstone, Attorney for Defendant and Appellant.

OPINION

WATKINS, J.

The accused was indicted at the September term, 1893, for the crime of larceny, and he was placed on trial, and a jury were duly empaneled and sworn, and the indictment read.

At this stage of the proceedings the district attorney requested a temporary suspension of the trial for the purpose of preparing an application for a continuance in order to enable him to procure the testimony of an absent witness. This application was granted, the proceedings were temporarily suspended, the motion for continuance was filed argued and submitted, the case was continued for the term and the jury empaneled to try the case were discharged -- the defendant objecting and retaining a bill of exceptions to the rulings of the judge.

At the February term, 1894, the defendant objected to going to trial, on the ground that he had been once in jeopardy, and was discharged and released from further prosecution, by reason of the continuance of the cause, under the circumstances detailed, and to that end he filed a plea of previous jeopardy.

This motion was overruled and he retained a bill. Over his objection the trial was thereafter proceeded with, he was found guilty, was sentenced to eighteen months' imprisonment in the penitentiary, and from that sentence he prosecutes this appeal.

The question propounded is, whether the accused was put in jeopardy by the empaneling of the jury of trial, and the reading to them of the indictment -- no testimony having been adduced -- and did the discharge of the jury and the continuance of the case operate his release from further prosecution -- the continuance of the case and the discharge of the jury being over the defendant's objection and exception.

It appears, as matter of fact, that the principal witness on behalf of the State had been duly summoned, but was not found by the sheriff, and that certain depositions which had been taken before an examining magistrate and deposited in the clerk's office were missing and could not, after diligent search, be found.

In order to obtain this testimony, the district attorney had requested a continuance of the case, and the judge assigned as the reason for granting it that the application proceeded upon the theory that the State was surprised that a part of the public archives of the clerk's office could not be produced, and that this fact did not evidence want of due diligence on the part of the district attorney in not having previously advised himself of the loss, as that officer had the right to presume the record was in its proper place.

The question of discretion in the judge to grant or disallow the continuance depends, however, on the main question of whether the circumstances related disclosed that the defendant was in jeopardy at the time it was granted; for, if he was, the judge had no discretion in the premises, and if there was no jeopardy, he had.

An examination of the authorities has satisfied us that the defendant's plea is good and should have been maintained.

Mr. Bishop defines jeopardy thus: "If after the jury have been sworn, and thus the jeopardy has begun, the court, contrary to true practice, discharges them without a verdict, this is, in law, equivalent to an acquittal; and, on motion, without plea, the prisoner is entitled to be set at liberty." 1 Bishop's Crim. Prac., Sec. 821.

Again that author says: "When on the completing and swearing of the panel, the jeopardy of the accused begins; and it begins only when the panel is full; until full, the...