# Martin v. State > Supreme Court of Arkansas · March 3, 1924 · 163 Ark. 103 URL: https://www.frixlaw.com/law-library/cases/7812671 ## Case - **Full name:** Martin v. State - **Court:** Supreme Court of Arkansas - **Decided:** March 3, 1924 - **Citations:** 163 Ark. 103; 259 S.W. 6; 33 A.L.R. 133; 1924 Ark. LEXIS 244 - **Precedential status:** Published - **Opinion:** Dissent by McCulloch - **Judges:** McCulloch, Smith - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7812671 ## Opinion text McCulloch, C.J., (dissenting). In Whitmore v. State, 43 Ark. 271 , this court declared the law as to when jeopardy attaches in a felony case and the effect thereof to be as follows (quoting from the syllabus): “A prisoner is in jeopardy from the time that the jury is impaneled and sworn, in a court of competent jurisdiction, upon an indictment sufficient in form and substance to sustain a conviction; and the entry of a nolle prosequi, or discharge of a juror, after that, without his consent, operates as an acquittal, except in cases of overruling necessity, as the death or illness of the judge or a juror, or inability of the jury to agree on a verdict. ’ ’ In the opinion it is further said: “This court has heretofore drawn the line where jeopardy begins at the swearing in of the jury to try the issue. And this is in accordance with the overwhelming weight of authority and with the best considered cases.” That there has been no shifting of the weight of authority on this subject is evidenced by the recent statement in Ruling Case Law (vol. 8, p. 138), as follows: “A person is in legal jeopardy when he is put on trial, before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his dellyerance, and a jury is said to be thus charged when it is impaneled and sworn. The opinion prevails to some extent that jeopardy does not attach until a verdict is rendered. ' This doctrine, however, limits the term jeopardy to mean the same as autrefois acquit or convict. But the word means exposure to danger; and, Avhere a person is put on his trial on a charge of a crime before a jury sworn to decide the issue between the State and himself, he is then exposed to danger in that he is in peril of life or liberty.” . In the opinion in the Whitmore case the court referred with approval to a decision of the Supreme Court of Ohio, holding that where, after the impaneling of a jury, it is discovered that one of the jurors had served on the grand jury, and the defendant objected to proceeding in the trial with the jury thus impaneled, it was within the province of the court to discharge the jury and substitute another, for the reason that the objection of the defendant created a necessity which prevented proceeding with that jury. The principle announced in the Ohio case and approved in the Whitmore case Avas the basis of pur decision in Franklin v. State, 149 Ark. 546 , and Martin v. State, 161 Ark. 423 . The fact must be recognized that the court has now overruled Whitmore v. State, supra, without saying so in so many words. In the present case the appellant did not object to proceeding before that jury, Avkieh had been regularly impaneled and sworn, nor did he consent, either expressly or impliedly, to the discharge of juror Middle-brook; on the contrary, he expressly objected to the .discharge of that juror.. In the Whitmore case the court said: “The service of Blevins on the grand jury which preferred the bill did not render 1dm incompetent to sit on the petit jury which tried the case. It Ayas only cause of challenge for implied bias. The trial then might well have gone forward with the jury as originally constituted. And, since it does not appear that any objection was taken by the defendant on account of the fact disclosed by Blevins, it must be presumed that he was insisting on his constitutional right to a trial before that jury, of which Blevins was a member.” The facts of the Whitmore case were precisely the same as in the present case, except that in one case the juror had been a member of the grand jury which returned the indictment, and in the other the juror had been a member of a former trial jury. That distinction does not alter the principle, for, in either case, the juror was not incompetent, but was subject to challenge for cause, and the action of the court in discharging the juror was merely to allow the prosecuting attorney to exercise a challenge for cause after the impaneling of the jury. The court, in overruling the Whitmore case, has followed what was then, and is now, the minority rule, and the effect of the present decision is to hold that the court may, in its discretion, allow a, juror to be challenged for cause after the jury has been impaneled and sworn. The effect is to overturn the ancient rule that jeopardy attaches when the jury is impaneled and sworn, and the logical result of this holding is that, any time before a verdict, the jury may, in the discretion of the court, be discharged. There is no place to draw the line between the impaneling of the jury and the rendering of a verdict, and if the court may, over the objections of the accused, excuse a juror immediately after the impaneling of the jury, it may likewise do so immediately before the return of the verdict. The court intimates, in the concluding part of the opinion, that the trial court has the power to prevent an imposition upon the court by discharging a juror after the jury is impaneled and sworn. I have always understood the law to be that, after jeopardy has attached, it is too late for the State to complain of fraud or imposition in the impaneling of the jury or any other irregularity in the proceedings, for the accused is protected from then on from another trial. Whatever ill treatment the cause of the State may receive after that time is without remedy. It seems to me that the decision in the present case introduces into the criminal law an entirely new principle, to the effect that, after an accused has been put in jeopardy, the State may be protected from injustice by discharging the jury, or a member thereof, and substituting another thought to be more impartial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7812671. Public record. Not legal advice.