Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-01-26

Grim Gases, u ed) 6S7; United States |
vs. Williams et al, Clifford, in which |
d Is stated that since the decision In |
Gibut'e case, the point has been dis.
cussed In twenty Of the states OF the
Union, in every one of which Il has
been held that q new trial may be
granted on the application Of the sc-
cused in any criminal case for good
cause shown ] Bish. Or. L. "a ed.
secs S44, SAT; Simcoe VS.. State,
Tex CT app 1885, People vs. Mccoy,
is Johns u
In support OF the rule that jeopardy
does not attach until q verdict OF sc-
quittal or conviction, are the following
authorities; United States We. Perez,
8 Wheat, $40; People Va, Goodman, Is
Johns, 206; the State We, Haskell,
Wash 402; Com. va. Olds, 5 Littell,
lao; KlUck We. the People Park, IN
Y Or Gas, 476; the People VS. West.
chester ] Park, IN Y } Or Cas-, $50
On the other hand, we believe that
80 far as number and responsibility OF
concurriug authorities can 60 to estRb-
lish rule nf law, the following propo-
sition regarding jeopardy Is the cor
rect rule, and hence he tar: A per-
son is in legal jeopardy when he is put
upon trial before court Of competent
jurisdiction, upon an INDICTMENT or
information sum lent IN form aud sub
etatce TO sustain q conviction, and a
jury has been impaneled and sworn 10
try the case. In this opinion we are
not discussing the question at length,
but prefer to rely upon and urge au.
thorities, and in support Of the above
proposition, we cite the following as
small number of the authorities which
sustain the proposition and we will
head the list with the United States
vs Gibut ct al s SUNNI, 10; I Barb,
6s5i Z Blach, 1871; 6 Sergt aud r., $3.50;
b Ind, 292; RAwle, 49S; Porter,
1877; S Iowa, 2SS; II Harris, 10; Is
Johns, 206; S ind., 4l6; ID, 325; .
Dew. and b., l62; . Mutt and MrCord,
Is. ~ ~ | Hayw. IN o. 24l; l
Kelly (Ga So; 26 Ala 1886; 3S CAL,
40; 5 Uoldw (renn 3ll; 8 w. V. 699;
"a Ohio At 1874; 8 Humph. IN Y 297; 80
Ala, 100; dumph Tenn 25l
The next question lie, the prisoner
being in jeopardy, what will deprive
him of tie constitutional shield, and
relieve the case of jeopardy so that he
can again be placed on trial for the
same Oflense? When the Indictment
Is sufficient and the proceedings are
regular, before court having jurisdic-
tion, down to the time when Jeopardy
/ attaches, there can be no second
jeopardy allowed in favor of the state
| on account of any lapse or error at q
la er stsge. The following fscts, how
ever, viii relieve the case OF jeopardy,
| and authorize a second trial OF the de-
! PENDANT for the same o1frnst: Sick
ness Of the Judge, a juror or the pris-
Oner, (of course, death or insanity OF
! the Judge or "a juror or expiration OF
| the term of the court before verdict,
and, lastly, failure Of the jury to agree
ON a verdict
Failure Of the jury to agree" Upon
this subject large number Of most
respectable courts of APPELLATE juri-dic
ton hold this to mean that the judge
cannot discharge the jury against the
C consent of the prisoner on failure &c
agree on verdict, unless they be pre-
| vented by some physical impossibility
and that the jury should be kept To-
Qether until the court is about to ad
journ, when Of necessity they mus
be discharged.
The irish courts have very carefully
examined the same subject and have
held, relying solely upon the common
law principle cited above, that the
court ought not 10 discharge a jury In
capital trial merely because they
have been, in the opinion Of the judge
reasonable time In celebrating anC
have not agreed, and say they canuo
agree REX va Leary. Crawford
and Dix, 2l2; Conway vs. the Queen
Irish Law Reports, l40; Cox q G
0l0l This latter is said TO be the full
est and most carefully considered cas-
on this question, To be found on eithe
side of the Atlantic, and Lord Den
man, in Regina Va, Newton, Coz
, G. O., 495, abiding to this case, sale
the court of queens bench in lrelAnI
: Is q great authority, and the case II
that court was decided upon mucl
| consideration, and after full resort q
all the cases which are discussed witt
, much learning. The most recent case
t in England, however, are inclined t
sustain the opinion OF Crompton, VIII
| dissented in an able opinion The su
3 thorities in support of the Irish rule
: some of them, are the following:
e sergt. and r., 577; II Mas, 1913;
2 RAwle., 49s; . Dew. and B. 1852; l0Yerg
9 5S2; 2 Dew. and B., ITO; Porter, 49,
: / Hszlewood, 24I; % Ala, l55; Ind
4 326; i'd. 4l6 Later decisions OF Ala
D banna favor the opposite doctrine, an
e are cited in the Encouragement
Y brief
{ While it is not necessary for us to d.
Q eide between these two conflicting d'
3 clsions Ia order to determine the que
o ton before US, (sleaking alone for Oh
q writer), / am Of the opinion, however
o that the rule stated by the Irish cOurl
# and supported by the cares cited,
# correct, aud that the legislature has Il
a power TO change or modify this ru
/. against the prisoner.
l. Testing the question by our coo
e alone. we are of tho opinion that 4
5. plea of former jeopardy Was most clea
B. iy sustained by the bill Of exception
Il and should have prevailed Articl
7Ol of the Code Of Grim. Proc pr
a vides: "rhe jury may be discharge
a aaNnN tad N