117 Mo. App. 564 | Mo. Ct. App. | 1906
An order was issued by one of the Judges of this court directed to the Honorable Joseph J. Williams, Judge of the Twenty-First judicial circuit of the State, and Almon Ing, Prosecuting Attorney of Wayne county, commanding the respondents to appear before this court in term time, to-wit, December 12,1905, at 10:30 a. m. and show cause why a writ of prohib ition should not issue, restraining further proceedings against relators in a criminal case pending in the circuit court of said county. It appears from the allegations of the petition for the writ, that at the February term, 1905¿ of the Wayne Circuit Court, relators had been indicted for gambling with dice and at the August term ensuing, were arraigned on said charge and pleaded not guilty. The cause came on for trial and both the State and relators announced ready. Thereupon a jury of twelve
“A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged, when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause.”
The doctrine of that text is supported by numerous citations and has been directly approved by the courts of this State. [Ex parte Snyder and State v. Snyder, supra.] Any judgment or conviction which may be entered against defendants on the indictment on which they were- formerly brought to trial, would not be permitted to stand and none ought to be entered. Relators should be discharged as soon as the circuit court convenes. Nevertheless, it is our opinion that prohibition will not lie to restrain further proceedings against them. As said above, the circuit court of Wayne county has jurisdiction of the particular cause and jurisdiction of its subject-matter. To proceed further against defendants would be exercising its jurisdiction in a palpably
We conclude that the writ should be denied, though some of the Missouri cases raise a doubt in our minds regarding the matter. We think the act sought to be restrained is not in excess of the circuit court’s jurisdiction ; but if done, it would be an extremely erroneous denial of the relators’ legal rights.