Grogan v. State , 44 Ala. 9 ( 1870 )

PETERS, J.

The appellant, Grogan, was indicted in the circuit court of Wilcox county, on the 28th day of May, 1868, for an assault on Robert Hinton, with intent to murder him. This cause came on to be tried in said court, at the October term thereof, in 1869, when the defendant, having pleaded not guilty, went to trial, with a jury, on that plea. For the purpose of trying the said defendant, a jury of good and lawful men were duly sworn and empanneled by the court, “ to try the issue joined.” The record then states that, “ after the evidence had been gone through with, and the solicitor for the State had opened the case to the jury, and the counsel for the defendant, Grogan, had made their arguments to the jury, the counsel for the defendant, Grogan, having made their point of law to the court, that the circuit court of Wilcox county had no jurisdiction to try this cause,” and the point thus made was sustained by the court, “the solicitor, on behalf of the State, moved the court to enter a nolle prosequi in this case, and further moved the court, that the defendant, Patrick T. Grogan, be bound over to appear at the next term of the city court to be held in and for the county of Dallas, in the State of Alabama, to answer such indictment as may be found against him by the grand jury of the circuit court of said Dallas county.” To these motions the defendants objected, and insisted, “ that the jury b.e required to render a verdict in said cause.” These motions being heard, and argument thereon being had before the court, they were granted, and a nolle po~osequi was entered by the court against the consent and objection of the defendant, said Grogan. And said Grogan was thereupon required by the court to enter into bond, with security, in the sum of five hundred dollars,' conditioned that he appear at the next term of the circuit court of said county of Dallas, and from term to term thereafter until discharged by law, to answer the offense of assault with intent to murder. Said bond being given as required, said defendant was discharged by the court. The court then further ordered, that the clerk of the circuit court of Wilcox county forward to the clerk of thé circuit court of Dallas county a certified copy of the judgment and proceedings in the case, which had been entered in said circuit court of Wilcox county. These were recitals made in the judgment of nolle prosequi.

There was also a bill of exceptions taken by the defendant on the trial, which shows the same facts as those set out in the judgment of the court above recited ; and also, that after the causé had been submitted to the jury, and all the testimony had been closed and the cause partly argued by counsel on both sides, “ the State moved to enter a nolle prosequi, and to bind the prisoner over to answer the same charge in Dallas county. To this motion the prisoner objected, and insisted that the jury be allowed to pass upon the case, and to return a verdict of guilty or not guilty.” The court sustained the motion, and refused to permit the jury to bring in a verdict, and discharged them, and bound the. defendant over to answer the same charge in Dallas county. To all which the defendant excepted, and reserved the same in his bill of exceptions.

From this judgment of the court below the said defendant, Grogan, has appealed to this court, and he here assigns the proceedings in the court below for error; and also moves this court for a mandamus, or other proper writ, “ to the end that the supreme court will direct the discharge of the said Patrick T. Grogan, as upon a final trial and acquittal on the issues joined on the indictment in the circuit court of Wilcox county.”

It also appears from the bill of exceptions, that there was some testimony offered by defendant, that the offense with which the defendant below was charged, had been committed in the county of Dallas, and not within a quarter of a mile of the boundaries of the two counties of Dallas and Wilcox; and also, some testimony offered by the State, showing that the offense was committed within a quarter of a mile of said boundaries.

At the last term of this court, the validity of section 3945 of the Bevised Code was considered. It was then declared to be a constitutional law; and we have not since discovered any sufficient reason why that determination should not be adhered to. We are, therefore, satisfied with that exposition of the law, and it is here now again affirmed. Hill v. The State, at June term, 1869; Const. Ala. of 1867, § 8; Revised Code, § 3945.

The constitutional guaranty against a second trial for the same offense is in these words, to-wit: “ No person shall, for the same offense, be twice put in jeopardy of life or limb.” — Const. Ala. 1867, art. 1, § 11.

The question of difficulty is to ascertain when this jeopardy begins; because, until it does begin, it can not be said to exist, and the constitutional protection can not be invoked. Happily, the embarrasment that once encumbered this question has been long since removed. At an early day in the judicial history of this State, this court settled the law to be, that “ the unwarrantable discharge of a jury, after the evidence is closed, in a capital case, is equivalent to an acquittal.” — Ned v. The State, 7 Por. 187, 203. This decision is in conformity with the law as settled at this day. A recent and carefully prepared work upon the subject of criminal law, lays down the rule in the following terms: “ But when, according to the better opinion, the jury, being full, is sworn and added to the other branch of the court, and all the preliminary things of record are ready for the trial, the prisoner has reached the jeopardy from the repetition of which our constitutional rule protects him. During the trial, the prosecuting officer is not authorized to enter a nolle prosequi; or, if he enters it, even with the. consent of the judge ; or, if he withdraws a juryman, and. so stops the hearing, the legal effect is an acquittal.”— 1 Bish. Cr. Law, §§ 856, 858, (3d ed. 1865.) Such a procedure as that shown by the record in this case entitles the defendant to have a verdict of not guilty returned by the . jury, and he can not be again brought into jeopardy for the same offense. — 1 Bish. Cr. Law, § 858, and notes; The State v. Slack, 6 Ala. 676; Cobia v. The State, 16 Ala. 781; McAuley v. The State, 26 Ala. 135.

Here the jury was regularly sworn and empanneled, the defendant went to trial on his plea, the evidence was closed on both sides, and the argument for the defense was finished. The trial was then stopped, and a nolle prosequi was entered without the consent of the defendant and against his objection. Under such a state of facts, the discharge of the jury was an acquittal of the defendant. This is the law, and it must be enforced. The defendant should have been discharged as soon as the nolle prosequi was entered. The court erred in failing to do so. And, as he can not be again tried for the same offense, to answer which he was bound over to appear at the Dallas circuit court, the proceedings in the court below are reversed, back to the judgment of nolle prosequi, and it is ordered and adjudged by this court, that the appellant, said Patrick T. Grogan, the defendant below, be discharged from further prosecution upon the charge of assault on said Robert Hinton, with the intent to murder him, said Hinton, as made and set forth in said indictment, found in said circuit court of Wilcox county, on said 28th day of May, 1868, . and herein above referred to.

There will be no need for a mandamus if the order of the court in its judgment in this case is obeyed, as it doubtless will be. Therefore, the questions arising on a consideration of the motion for that writ are not discussed in this opinion.