# Maddox v. State > Indiana Supreme Court · December 4, 1951 · 230 Ind. 92 URL: https://www.frixlaw.com/law-library/cases/9523468 ## Case - **Full name:** Maddox v. State of Indiana - **Court:** Indiana Supreme Court - **Decided:** December 4, 1951 - **Citations:** 230 Ind. 92; 102 N.E.2d 225; 1951 Ind. LEXIS 223 - **Precedential status:** Published - **Opinion:** Dissent by Draper - **Judges:** Jasper, Draper - **Cited by:** 13 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/9523468 ## Opinion text DISSENTING OPINION Draper, J. Given regularity up to that point, when a jury has been duly impaneled and sworn to try a criminal case, the accused is in jeopardy. If, thereafter, the jury is discharged without the consent of the ac *105 cused, and in the absence of any legal necessity for so doing, the accused cannot again be placed in jeopardy for the same offense. This is not that kind of a case. Boiled down to its essentials, the rule of all the cases, is that an accused is entitled to have a trial completed and a verdict returned by the jury first impaneled and sworn to try him, and a verdict at their hands is valid and binding so far as former jeopardy is concerned. See Kingen v. The State (1874), 46 Ind. 132 ; Gillespie v. State (1907), 168 Ind. 298 , 80 N. E. 829 ; Baker v. Commonwealth (1939), 280 Ky. 165 , 132 S. W. 2d 766 , 125 A. L. R. 691. The first and only jury impaneled and sworn to try this case did try the case. It was never discharged and never even separated until it was discharged in due course after it had returned a verdict. Here there was one charge, one plea, one trial and one verdict returned by the one and only jury ever impaneled and sworn to try the case. I have seen no decision holding that under such circumstances a case of double jeopardy is presented. The majority opinion cites none and I take it none can be found. The closest case on its facts that I have been able to find is that of Lovato v. New Mexico (1916), 242 U. S. 199 , 37 S. Ct. 107 , 61 L. Ed. 244 . There Lovato on November 9, 1910 pleaded not guilty to an indictment for murder. On April 24, 1911, without withdrawing the plea, he demurred to the indictment on the ground it charged no offense. The demurrer was overruled and the jury was impaneled and sworn to try the case. The witnesses were also sworn. It thereupon appearing to the district attorney that Lovato had not been arraigned and had not pleaded since the overruling of the demurrer, the court upon motion dismissed the jury and directed that the defendant be arraigned and plead. The accused was *106 accordingly again at once arraigned. He entered a plea of not guilty, and, both sides announcing themselves ready for trial, the same jury previously impaneled was again sworn and the trial proceeded. The defendant moved for a directed verdict on the ground that he had been formerly placed in jeopardy for the same offense, claiming that in the same case a jury had been impaneled and sworn and thereafter had been dismissed from a consideration of the case. In an opinion by the Chief Justice the Supreme Court held that the contention that the accused was twice put in jeopardy was wholly without merit. The court said there was at best a mere irregularity of procedure which deprived the defendant of no right. It called attention to the fact that the confusion was brought about by an over cautious purpose on the part of the court to protect the rights of the accused, and whether under the circumstances it was a necessary formality to dismiss the jury in order to enable the accused to be again arraigned and plead, the action was clearly within the bounds of judicial discretion. It would thus appear that where a jury is impaneled and sworn to hear and decide a cause, and it does hear and decide it, a mere irregularity of procedure which deprives the accused of no right cannot be translated into double jeopardy. To me that case is persuasive authority. Moreover, I can find no fault with the procedure followed by the trial court in this case. It seems to be indicated by the opinions of this court. In Gillespie v. State, supra, the submission was set aside on the state’s motion and a juror was further examined on his voir dire.. The examination of this juror disclosed no legal necessity for discharging him, but he was peremptorily challenged by the state. Another juror was thereupon ■selected to complete the panel. The court says at page 319: *107 “If, after the unsuccessful attempt on the part of the State to establish that the juror was disqualified by reason of relationship, the court had not allowed the State to challenge or remove him from the panel, but had, permitted the trial to proceed before the jury originally impaneled, we would be confronted with a different question. Under the circumstances, the act of the trial court in removing the juror in question operated, in effect, to break down and destroy the jury into whose hands appellant had been given in charge and from which body, in the absence of any absolute or legal neces-' sity arising, he was entitled to have a verdict returned.” (My emphasis) It seems apparent from the foregoing language that the setting aside of the submission would not operate as a discharge of the jury, for the court in effect says that had the trial proceeded before the jury originally impaneled to try the case, no question of double jeopardy would have arisen. It is clear that the court did not find double jeopardy in the fact that the submission was set aside. It found double jeopardy in the removal of a juror who was not shown to be disqualified. And that seems to be the rule of all the cases. The court clearly indicates in Kurtz v. The State (1896), 145 Ind. 119 , 42 N. E. 1102 , that the proper procedure when a situation like the present arises is to set aside the submission and ascertain the facts. The majority opinion says the court should determine the question of the existence of legal necessity, when the question is raised by the state, before the granting of a motion to withdraw the submission. It would seem to me that a juror could be questioned in order to arrive at the facts, but just how a juror may be examined on his voir dire after he has been sworn to try the case, without first setting aside the submission, is not made clear in the majority opinion. *108 The cases talk about the “discharge” of the jury. The majority opinion seems to be based on the premise that the setting aside of the submission is the same as, or is equivalent to, the discharging of the jury. Such is not the case. When a jury is discharged it is relieved of all further duties. Its connection with the case is severed. It is all through. The effect of setting aside the submission is, as explained in Kurtz v. The State, swpra, merely to put the jury in the condition in which they were before they were sworn. It cannot be that setting aside the submission is tantamount to discharging the jury, for in the majority opinion and in the earlier cases it is said that after the submission is set aside the jury may be further examined on its voir dire. I do not know how such an examination could be conducted after the jury was discharged. The majority opinion seems to hold that if the defendant wishes to examine a juror further, he must first move to withdraw the submission, but if the state wishes to show a legal necessity for discharging the juror, it must be shown, or as the majority opinion says, determined, before moving to withdraw the submission. How it could be shown or determined is not suggested, and the case cited to the proposition does not seem to point it out. I can find nothing in the cases which sustains the proposition that the parties should be bound by different rules. I can think of no reason for it—and none is given. The court on its own motion could and should question a juror further if the ends of justice seem to require it. 50 C. J. S., Juries, §249, p. 1005. Whether the court should question a juror on its own motion before or after the submission is withdrawn is not suggested in the majority opinion, and perhaps should not be, since the question was not presented. However, in the *109 light of the present holding it presents a problem which is interesting to me and may prove most puzzling to trial courts in the future. It seems to me the cases indicate that before a juror is questioned further by either party or by the court for the purposes under consideration, the submission should first be withdrawn so that the juror may be questioned further on his voir dire. If, as a result, a legal necessity to do so appears, the juror should be discharged. If not, the trial should proceed before the same jury. In neither case could the defendant be prejudiced, and out of neither alternative could double jeopardy arise. However, the important thing in this case, it seems to me, is that the appellant was in fact tried by the jury which he freely accepted and which was sworn to try the case, and by no other. Jeopardy attached once and once only. It terminated when the jury was discharged after the verdict. If there was an error in procedure, and I do not believe there was, it was an irregularity merely which deprived the appellant of no substantial right. Lovato v. New Mexico, supra. There is no right to immunity from one trial. The right to immunity from a second'prosecution for the same offense is a fundamental right which is firmly embedded both in the common law and in our constitution. I would not adulterate it. But neither would I extend it away beyond both the letter and the spirit of the constitutional provision. I would affirm. Note.;—Reported in 102 N. E. 2d 225 , --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523468. Public record. Not legal advice.