State Ex Rel. Ryan v. McNeill , 141 Fla. 304 ( 1940 )

Relator was informed against for violating the Florida Securities Act, the information being in three counts based on a single transaction. A motion to quash was sustained as to two counts, a motion for continuance was denied, and the case was called for trial on the third count. Each juror was questioned at length with reference to facts necessary for acquittal and conviction and the information was read to him. The State exercised four peremptory challenges and the defendant exercised two. The panel was completed, accepted, and sworn. The State attorney explained the case, related the facts relied on for conviction, and read the information to the panel.

At this period in the trial before beginning to take evidence, the State attorney moved to discharge the jury on the sole ground that the defendant had not been arraigned nor pleaded to the information. Defendant's counsel did not resist the motion but stated that he did not waive any right he had. He excepted to the discharge. The State attorney then had defendant arraigned, to which he objected but his objection was overruled and date for new trial was set for the following day. Defendant filed plea of former jeopardy, alleging that the discharge of the jury amounted to his acquittal and the new trial would constitute second jeopardy. A demurrer to this plea was sustained.

On these facts, petition for writ of prohibition was filed in this Court and a rule nisi was issued. Respondent has moved to discharge the rule nisi. The only question necessary to answer is whether or not the plea of second jeopardy was well grounded.

In our view, the question was answered in the affirmative by this Court in Padgett v. State, 117 Fla. 75, 157 So. 186, and State ex rel. Dato, et al., v. Himes, 134 Fla. 675,184 So. 244; Allen v. State, 52 Fla. 1, 41 So. 593.

So the rule absolute in prohibition must be and is hereby issued.

It is so ordered.

BROWN, BUFORD and CHAPMAN, J. J., concur.

WHITFIELD and THOMAS, J. J., dissent.