ON REHEARING. February 7, 1917. This case was affirmed on a former day of the term in an opinion by Presiding Judge Prendergast, from which Judge Davidson dissented. The sole question involved was, whether or not the trial court erred in refusing to submit to the jury appellant's plea of former jeopardy. The plea and the action of the court thereon were stated in both of the opinions mentioned, and on this consideration of the appellant's motion for rehearing reference is made to the statement of the case in the majority and dissenting opinions.
Article 1, section 14, of the Constitution, says: "No person for the same offense shall be twice put in jeopardy of life or liberty." Jeopardy is not defined in the Constitution, but its meaning has been ascertained by our courts before the adoption of the Constitution, and it is held in Powell v. State, 17 Texas Crim. App., 345, that the prior interpretation of this meaning was binding, and was, in substance, as given by Mr. Cooley as follows:
"A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon 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 empaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new *Page 541 prosecution; and he can not 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 case." (Cooley's Const. Lim., 15th ed., 404.)
The common law rules with reference to the principles relating to jeopardy have been adopted by our statutes (P.C., art. 4), where not in conflict with some of the written laws of the State, and the procedure with reference to them is upon the same footing. (Art. 26, C.C.P.) From the numerous authorities decided in 10 Am. Eng. Ann. Cas., 1086, the rule with reference to jeopardy as there stated is thus laid down: "The rule may be deduced from the authorities to the effect that where a person has been placed on trial before a competent court and jury on a valid and sufficient indictment or information, jeopardy attaches, and if a mistrial is ordered and the jury dischargedwithout the consent of the defendant, or some overrulingnecessity, a plea of former jeopardy will lie to any subsequentprosecution for the same offense."
The circumstances under which a jury may be discharged after jeopardy, is given in our statute, article 616, C.C.P., as follows: "A continuance may be granted on the application of the State or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial can not be had, or the trial may be postponed to a subsequent day of the term." This statute has been interpreted in the cases of Woodward v. State,42 Tex. Crim. 188, and Pizano v. State, 20 Texas Crim. App., 139.
The plea, which is substantially set out in the dissenting opinion mentioned, charged that after jeopardy attached, the trial court held the State's essential prosecuting witness incompetent and discharged the jury upon motion of the State's attorney with the consent of defendant's counsel but without the defendant's consent, he neither consenting nor protesting. This plea, having been stricken out on demurrer, must be considered as true, and the action of the court in striking it out can be sustained only upon the theory that under the circumstances the court had authority to discharge the jury without the consent of the defendant or upon the theory that the consent of the defendant's counsel was binding upon the defendant.
In Bell v. State, 2 Texas Crim. App., 215, it was held that an attorney can not bind the defendant by an agreement to allow the introduction of secondary evidence of incriminating facts, because such agreement would deprive defendant of the constitutional right to be confronted with the witnesses against him. In McDuff v. State, 4 Texas Crim. App., 58, it was held that an agreement by attorneys to waive copy of indictment will not be binding on defendant, and the same principle is asserted in the case of Murmutt v. State, 63 S.W. Rep., 634. The agreement of counsel to discharge the jury, in the *Page 542 present case, would, if binding on appellant, have the effect of waiving the constitutional guarantee against being twice put in jeopardy for the same offense. Nor would the silence of appellant under the circumstances set out in the plea of former jeopardy deprive him of his right to urge the plea on a subsequent prosecution. It was held in the case of Sterling v. State, 15 Texas Crim. App., 249, that where a jury was discharged with the consent of counsel for the defendant, given in hearing of the defendant, that such consent was not binding upon defendant. To the same effect is Hill v. State, 10 Texas Crim. App., 618. The law does not impose upon the defendant in a criminal case the duty of protesting against the discharge of a jury where it was not authorized by law.
The plea raising an issue of fact as to whether the trial court had the consent of defendant to the discharge of the jury, this question of fact should have been tried and submitted to the jury unless the conditions were such as under article 616, C.C.P., that the trial court could discharge the jury without his consent. This statute gives such authority to the court when there is "some unexpected occurrence since the trial commencedwhich no reasonable diligence could have anticipated." The occurrence which took place as shown by the record in this case after the trial began was that the trial judge held, after interrogating the State's witness, who was only three years old, that she was not qualified to give testimony. Article 788, Vernon's Ann. C.C.P., declares that "children or other persons who after being examined by the court appear not to possess sufficient intelligence to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath," are incompetent to testify. Mr. Wharton, in his work on Criminal Evidence, section 366, page 743, uses the following language: "To permit a child under four years of age to be sworn and examined as a witness would be to trifle with public justice. Hence the dying declarations of a child of four years have been properly held inadmissible, and the admissibility of children of that age, as witnesses, is, on the same reasoning, disputed. But the testimony of a child of between four and five years of age, and that of a child between six and seven, has been received on the trial of an indictment charging an attempt to ravish. Four years has been assigned as the minimum age, but after this age the question of admissibility is to be decided by the court." The competency of young children as witnesses has often been a controverted issue in the trial of causes in this State, as will be noted from the citation of cases on the subject in Branch's Crim. Law, section 854, and Vernon's Ann. C.C.P., page 699. In the case of Pizano v. State, 20 Texas Crim. App., 139, a State's witness, whose testimony was essential to the State, was absent, and the State's counsel withdrew his announcement of ready on the ground of surprise, he having announced ready upon information from the sheriff that the witness was present, and the jury was discharged. On a subsequent trial the plea of former jeopardy was *Page 543 interposed and sustained in this court, it holding that these circumstances were not such as to give the court discretion to discharge the jury. The indictment in the present case was filed May 16th and the trial occurred October 11th in the same year. It does not occur to us that the incompetency of the three-year-old child, or the fact that the learned judge would upon examination hold such witness incompetent, would be such an unexpected occurrence that no reasonable diligence could have anticipated. It might possibly be a question of fact, but clearly it could not, in our judgment, be held as a matter of law to have authorized the discharge of the jury without the consent of the defendant.
As the record is presented we do not think the recital in the interlocutory judgment entered after the jury had been discharged would deprive the appellant of the right to urge his plea of former jeopardy in the subsequent prosecution. Vela v. State,49 Tex. Crim. 588, 95 S.W. Rep., 529.
We think the trial court erred in dismissing the plea of former jeopardy. It is, therefore, ordered that the motion for rehearing be granted, and the judgment be reversed and the cause remanded.
Reversed and remanded.