State v. Ward

• Decision Date: 04 December 1886
• Citation: 2 S.W. 191
• Parties: STATE <I>v.</I> WARD.
• Court: Arkansas Supreme Court

2 S.W. 191

STATE

v. WARD.

Supreme Court of Arkansas.

December 4, 1886.

Appeal from circuit court, Garland county.

Indictment for embezzlement. Judgment for defendant on plea of former jeopardy. The state appealed.

Dan W. Jones, Atty. Gen., for the State.

COCKRILL, C. J.

Ward was indicted for embezzlement. He demurred to the indictment. The demurrer was sustained as to one count, and overruled as to the others. A jury was impaneled and sworn, and, at the close of the day, the trial not being concluded, they were allowed by the court, upon consent of the parties, to separate. On the second morning of the trial one of the jurors was absent, on account of the sickness of a member of his family, and the court then, for the first time discovering that the defendant had not been arraigned, and had not entered a plea to the indictment, upon the motion of the prosecuting attorney, discharged the jury. Ward then moved the court for his discharge, upon the ground that he had been in jeopardy. The court granted his prayer, and dismissed the indictment. The state has appealed.

It is the established rule that, when a jury in a criminal case is impaneled and sworn in a court of competent jurisdiction to try the prisoner under an indictment sufficient in form and substance to sustain a conviction, he is in jeopardy. He is then entitled to a verdict which will bar further prosecution for the same offense; and an unnecessary discharge of the jury without his consent does not deprive him of the right to the bar. Whitmore v. State, 43 Ark. 271.

The consent of the prisoner to the separation of the jury in the case cannot be taken as a consent that a juror should absent himself, and so necessitate the discharge of the others; and, if there were nothing else to prevent the bar, he could not be again tried for the offense charged in the indictment. Hilands v. Com., 6 Atl. Rep. 267.

2. Arraignment and plea necessarily precede the swearing of the jury, for the jury are sworn to try the issue made by the plea; and it was laid down under the old system that these steps were an essential part of the proceedings, and that without them there could be no valid trial or judgment. If the prisoner stood mute, it was deemed that no trial could be had. If a plea could not be extorted from him, and it was ascertained that he was not dumb ex visitatione Dei, he was sentenced as on conviction. But, as the legal system developed, methods of procedure yielded in importance to substantial rights, and the courts were authorized to enter a plea of not guilty for the prisoner who declined to plead, and to investigate the question of his guilt upon this enforced plea. The failure to enter the plea for him was still regarded as fatal to the legality of the proceedings, when, to further sink the importance of mere procedure when compared with rights, the legislatures of some of the states enacted...