State v. Tatman

• Decision Date: 17 October 1882
• Citation: 13 N.W. 632,59 Iowa 491
• Parties: STATE OF IOWA v. TATMAN.
• Court: Iowa Supreme Court

59 Iowa 491

13 N.W. 632

STATE OF IOWA

v.TATMAN.

Supreme Court of Iowa.

Filed October 17, 1882.

Appeal from Adair district court.

This is a prosecution under an indictment for the crime of uttering a forged deed. There was a trial by jury and defendant was convicted, and he appeals.J. W. West, for appellant.

Smith McPherson, Atty. Gen., for the State.

ROTHROCK, J.

1. The defendant was put upon trial at the March term, 1880. After all the evidence had been introduced the presiding judge received a telegram from his home at Des Moines to the effect that his wife was sick, and asking him to go to his home. This was on the ninth day of March, 1880. The court was adjourned until the following Friday, and the jury were discharged until that time, and the judge went to his home. On Friday the judge, by a telegram, ordered the court to be finally adjourned, and on the Monday following his wife died. At the March term, 1881, of said court the defendant was again put upon trial upon the indictment. He filed a written plea setting out the facts, and alleging that legal jeopardy had attached, and that he could not again be put upon trial upon the indictment. The cause was submitted to a jury upon this issue, and a verdict was found to the effect that the defendant was not entitled to an acquittal upon that ground.

It is provided by the constitution of this state that “no person shall after acquittal be tried upon the same offense.” It is urged that the facts above recited amounted in law to an acquittal, or, what is the same thing, being once in jeopardy. “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.” Cooley, Const. Lim. 325.

While this is the general rule, there are many exceptions to it in the common law. If by any overruling necessity the jury are discharged without a verdict, as from the sickness or death of the judge holding the court, or of a juror, or of the inability of the jury to agree on a verdict, or if the term of the court as fixed by law comes to an end before the trial is finished, or if the jury are discharged with the consent of the defendant, or a new trial be granted, the defendant may again be put upon trial upon the same indictment. Most of these exceptions are provided for by statute in this state. Code, §§ 4443-4, 4455-6-7-9. And in State v. Redman, 17 Iowa, 329, it was held that when a verdict is insufficient and defective in not responding to the indictment, the court may set it aside and try the prisoner again on the same indictment. In State v. Callendine, 8 Iowa, 288, when the name of a material witness upon the part of the state was not indorsed on the indictment, he not having been before the grand jury, and objection being made to his testimony, the court dismissed the indictment and ordered the prisoner to be held to bail, and another indictment was found, it was held that the defendant could not again be put upon trial. In that case it is said that “it is not at all times within the discretion of the court to stop the prosecution and still hold the accused to answer to the same offense on a future charge. It may discharge the jury under peculiar circumstances in cases of necessity, as upon a sudden indisposition of a witness, a juror, or the court, or a final difference of opinion among the jurors; for over...