Yerger v. State
| Decision Date | 23 June 1897 |
| Citation | 41 S.W. 621 |
| Parties | YERGER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Burnet county; John M. Furman, Judge.
W. L. Yerger was convicted of cattle theft, and appeals. Affirmed.
Blackburn & Hammond and Matthews & Browning, for appellant. Mann Trice, for the State.
Appellant was convicted of cattle theft, and his punishment assessed at two years in the penitentiary; hence this appeal.
There is no statement of facts in the record. From a bill of exceptions it appears that when the case was called for trial, on the 14th day of April, the parties announced "Ready," and a jury was impaneled and sworn, the indictment read, and the defendant called upon to enter his plea. At this juncture appellant's counsel requested the court to hear a motion to quash the indictment. This was granted, and when the motion was presented the district attorney asked permission of the court to withdraw his announcement of "Ready," and that the jury be discharged. This was granted. The indictment was amended in the matter complained of, it being a formal defect, and the following day the cause was again called for trial, and another jury impaneled, consisting in part of the jury previously impaneled. The defendant filed his plea of jeopardy, setting up the above facts. The record condensed may be thus stated: The trial was before a court of competent jurisdiction, the jury was impaneled and sworn, the indictment read to the jury, but the accused did not plead to the indictment. The question is, did jeopardy attach? We answer in the negative. We know of no authority holding, under this state of case, that jeopardy would attach. The plea of defendant must be entered, and issue formed. The cases cited by appellant are mostly against him, and the others do not support his propositions. At what time does jeopardy attach? Upon this subject Mr. Bishop says: "On the completing and swearing of the panel, the indictment being good, and the preliminary things of record, to be explained further on, being perfect, jeopardy in the case begins." Bish. New Cr. Law, art. 1014. As to the preliminary things of record referred to in above article, Mr. Bishop further says: "Though the jury has been impaneled and sworn, there is still no jeopardy, therefore no bar to second proceeding, unless the court is clothed with authority, and the prior proceedings are such that a judgment upon the verdict duly returned will be valid." Article 1020. Article...
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