State v. Williams

• Decision Date: 02 January 1906
• Citation: 92 S.W. 151,117 Mo. App. 564
• Parties: STATE ex rel. MEADOR et al. v. WILLIAMS, Judge, et al.
• Court: Missouri Court of Appeals

92 S.W. 151

117 Mo. App. 564

STATE ex rel. MEADOR et al. v. WILLIAMS, Judge, et al.

St. Louis Court of Appeals, Missouri.

January 2, 1906.

1. CRIMINAL LAW—FORMER JEOPARDY.

Where, after the jury had been sworn to try defendants under a valid indictment for gambling and four witnesses had been examined, the prosecuting attorney by leave of court withdrew the cause because of the absence of a material witness for the state, and an order was entered continuing the case over defendants' objection, they were thereby put in jeopardy and were entitled to their discharge.

2. PROHIBITION—SCOPE OF WRIT—ERRORS OF LAW.

Where the trial court had jurisdiction to try relators for gambling, they were not entitled

to a writ of prohibition to prevent the court from placing them on trial a second time after they had been once put in jeopardy, though the court's action in doing so was plainly erroneous; relators' remedy being by appeal.

Prohibition by the state, on relation of Job Meador and others, against Joseph J. Williams and others. Writ denied.

O. L. Munger and V. V. Ing, for relators.

GOODE, J.

An order was issued by one of the judges of this court directed to the Honorable Joseph J. Williams, judge of the Twenty-First judicial circuit of the state, and Almon Ing, prosecuting attorney of Wayne county, commanding the respondents to appear before this court in term time, to wit, December 12, 1905, at 10:30 a. m., and show cause why a writ of prohibition should not issue, restraining further proceedings against relators in a criminal case pending in the circuit court of said county. It appears from the allegations of the petition for the writ that at the February term, 1905, of the Wayne circuit court, relators had been indicted for gambling with dice, and at the August term ensuing were arraigned on said charge and pleaded not guilty. The cause came on for trial, and both the state and relators announced ready. Thereupon a jury of 12 good and lawful men from the body of the county was impaneled, qualified, and sworn to try the issues and render a true verdict according to the law and the evidence. Afterwards the trial proceeded before the jury until the prosecuting attorney of the county, representing the state of Missouri, had put on the stand and examined four witnesses. At the conclusion of the testimony of these witnesses the prosecuting attorney by leave of court stopped the trial and withdrew the submission of the cause from the consideration of the jury. This action was taken because of the absence of a witness for the state, on whose testimony the indictment had been found and who had failed to attend the trial, although subpœnaed. The cessation of the trial and the withdrawal of the submission of the cause from the jury were not made necessary either by the sickness or other disability of any juror, or of the judge of the court, and were done against the objection and over the protest of the defendants, who saved an exception at the time. Afterwards, during the same term of the court, and on the 14th day of August, relators filed in said circuit court a motion for their discharge from further proceedings under the indictment against them, on the ground that they had been put in jeopardy by a trial in which they might have been legally convicted and punished. On the 21st day of August the prosecuting attorney filed an application for continuance of the cause to the next regular term of the court because of the absence of the aforesaid witness. This application the court sustained, and continued the cause until the February term, 1906, to which ruling the relators, as defendants in said criminal case, excepted.

The purpose of this proceeding is to prohibit the circuit court of Wayne county and the prosecuting attorney from going further in the prosecution of relators on the charge of gambling. The petition filed here fails to state what ruling was made on the motion of relators for their discharge; but a duly certified copy of the record of the proceedings in the gambling case which is attached to the petition herein in support of its averments shows the motion was overruled. The transcript shows, too, that all of the allegations in the petition are true, as above recited. Beyond doubt relators were entitled to be discharged on their motion. They were put in jeopardy when the jury was impaneled and sworn, as the indictment was good and the circuit court had jurisdiction of the offense. State v. Snyder, 98 Mo. 555, 12 S. W. 369; State v. Wiseback, 139 Mo. 214, 40 S. W. 946; Ex parte Snyder, 29 Mo. App. 256; Cooley on Const. Lim. (7th Ed.) 467. The elementary work just cited states the law on the point in question as follows: "A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon 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...