Finch v. State, 53 Miss. 363

Finch v. State

53 Miss. 363 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

Under the view we take of this case only one point need be noticed. The indictment is for grand larceny, the accused was arraigned and put on trial, and the cause given to the jury, which, after having retired to consider of their verdict, returned into court, and announced a verdict of guilty, as charged in the indictment; “ whereupon (the record shows) the jury were discharged, and the defendant, James Finch, being called, it was found that . . . the sheriff had, by order of the judge, placed said defendant in jail; whereupon the jury, having been discharged for a few minutes, were recalled to the jury-box, and the defendant was brought into open court, and placed at the bar thereof; whereupon the indictment, instructions and verdict were returned to the jury, when they assented to and returned the aforesaid verdict” of guilty. Upon this the prisoner was sentenced to imprisonment in the penitentiary. It is manifest that the verdict was received in the absence of the prisoner through inadvertence. The result is deplorable, but the law must be maintained, whatever the consequences to be regretted in a particular case. The accused had the right to be present when the verdict was announced, that he might witness the proceeding, and poll the jury. It was erroneous to receive the verdict in his absence. The court had no right to discharge the jury under the circumstances. Price v. State, 36 Miss. 531; Josephine v. State, 39 Miss. 613 ; Nolan v. State, 55 Ga. 521. The verdict of the jury, in the absence *366of the prisoner, was a nullity, and its reannouncement by the jury, on being recalled, was a nullity, because the jury had been discharged, and could not lawfully be reassembled to take charge of the prisoner’s case.

The premature discharge of the jury without right entitles the prisoner to an acquittal, because of former jeopardy.

Judgment reversed and prisoner discharged.