68 Wash. 654 | Wash. | 1912
Appeal from a judgment of conviction, upon an information charging appellant with the crime of attempted kidnapping. The first error assigned is the refusal of the court below to grant a motion for a change of venue. This motion was based upon affidavits and clippings from newspapers, which it is claimed so aroused public passion and prejudice as to prevent appellant from having a fair trial in Pierce county. The motion was resisted by counter affidavits on the part of the state. We have examined the showing upon this motion, and the ruling complained of must be sustained under the rule laid down in State v. Welty, 65 Wash. 244, 118 Pac. 9, that a reversal will not be granted upon this
The next error is directed against rulings of the trial court in refusing to discharge the jury and discharge the appellant, when in the course of the trial it was discovered that a juror named Jernberg had not taken the oath, either upon his voir dire or after such examination, when the jurors then in the box, including Jernberg, were sworn as trial jurors in the case. Upon this point, the record discloses that Jernberg was one of the twelve men originally called into the jury box, and occupied one of the rear seats; that the box being full, the twelve veniremen were directed to arise and take the usual oath; that all arose and the oath was administered in the usual manner. The examination of these twelve veniremen was then proceeded with as to their qualification as jurors, including Jernberg who was one of the veniremen remaining in the box after the state and appellant had made desired challenges and announced their willingness to accept the twelve men then in the box as the jury in the case. Thereupon the twelve men were directed to arise and take the oath as jurors in the cause, and the usual oath was administered, to which all apparently made assent. The trial then proceeded; witnesses were sworn and examined. During a recess the court learned from Jernberg that, while he had stood up with the other veniremen during the administration of both oaths, he had not held up his hand nor taken the oaths, having conscientious scruples against taking oaths. Upon the opening of court, this was called to the attention of counsel
The plea of jeopardy cannot be sustained. There could be no jeopardy until the defendant had been placed on trial before a jury legally impaneled and sworn. Under the circumstances shown by the record there was no legally impaneled and sworn jury at the time Jernberg made his disclosure to the court that he had failed to take the oath. There could be no jury until twelve qualified jurors had been impaneled and sworn as a jury to try the issue between the state and the defendant. It was the duty of the court, upon learning that defendant was not being tried before a legal jury, to stop the trial of the cause, and correct the mistrial by impaneling and submitting to the defendant such a jury as he was entitled to under the law, and when the court tendered to the defendant the right to examine the juror Jernberg together with the other eleven jurors then sitting in the box, every right to which he was entitled under the law was fully preserved and guarded. State v. Kinghorn, 56 Wash. 181, 105 Pac. 234, 27 L. R. A. (N. S.) 136. There was no error in any of the other rulings made by the court,
The judgment is affirmed.
Dunbar, C. J., Ellis, Mount, and Fullerton, JJ., concur.