Appellant was convicted of assault to rob Mrs. A. F. Giese of the sum of three dollars, together with a carton of cigarettes. His punishment was assessed at five years in the penitentiary. *Page 476
The appeal is predicated on the failure of the court to sustain appellant's plea in abatement, it being the contention that appellant was put on trial at a previous date for this same offense and that when the jury failed to agree, the court dismissed them without the consent and concurrence of appellant at a time when his attorney was not present in the court room.
On the facts on this plea it was stated by appellant's attorney that he had instructed the deputy sheriff not to call him when the jury returned a verdict. It is shown the jury was out about an hour when they came into the court room and reported that they could not agree. Appellant was placed on the witness stand and asked the question, "Did the Judge ask you if you wanted to have them dismissed?" To this he answered, "No, sir, not that I remember." The court asked the witness if it is not a fact that when the jury reported he had him to stand and said to him, "The jury is unable to agree, and I am going to discharge you. You, therefore, will be discharged under the old bond." In answer to the question as to whether or not he remembered this, the appellant replied, "I just don't remember." The court was requested by the State to put into the record his version of what occurred and made the following statement:
"When the jury came in, Mr. Hull was foreman, and I asked him if they couldn't agree, they had been out such a short time. I then asked each juror if it were not possible; I didn't care to punish them. If it was possible at all, I would like for them to have a verdict, and they said it would be impossible to have a verdict at all, and so I turned to the defendant, and Sam stood up, and I said, 'The jury is unable to agree, and I am going to discharge them, and you can either make a new bond or be released on your old bond. You will therefore be discharged and a mistrial will be noted."
The jury stood eleven for acquittal and one for conviction.
It is noted that the trial court, in detailing all the things that took place, does not say he asked for the concurrence of appellant; nor is it shown that he was advised of his rights in the matter of asking for a continuance of the deliberations by the jury. It is not shown he even knew he had the privilege of objecting. The court simply informed him of what was being done. At this the jury was discharged and appellant had the *Page 477 privilege of retiring from the court room on his old bond or making a new one.
On the subsequent call of the case a plea of jeopardy was presented and appellant admitted he was satisfied to have the jury discharged. This was a natural position to take at the time.
We have extensively reviewed the decisions of this court from its beginning and find none that sustain the State's position. It involves a constitutional right which should be guarded with the greatest care. (Art. 1, Sec. 14.) It is not deemed essential to review all, or a great part, of these cases. Consequently we refer to only a few.
In Powell v. State, 17 Tex. Court of Appeals, 345 Judge White said:
"Would three and one-half hours be such a time as would necessarily render it altogether improbable that they could agree? Not that they would, but that they could agree? We think not, and, so believing, we are of the opinion that the Court abused his discretion in thus discharging the jury to the injury of the defendant's rights."
On the State's motion for rehearing Judge Hurt said:
"We believe that a careful examination of the cases which hold that the judge in his discretion may discharge the jury, and this discretion cannot be revised, also uniformly and of necessity hold that jeopardy does not attach before verdict. For, to us, it is a monstrous doctrine that the citizen has no other or safer assurance of the constitutional principle which shields him from being twice placed in jeopardy of life and liberty than the arbitrary discretion of the judge who tries him. He is given by his own Constitution the inestimable safeguard against being placed in jeopardy twice for the same offense, but is told by the courts of his State and county that this great bulwalk of liberty rests simply in the discretion of the trial judge, from whose rulings, though he be by such rulings deprived of this constitutional safeguard, there is no appeal. To such a doctrine we can never subscribe."
The appellant did not waive his rights in the matter; nor did he agree to the discharge of the jury by his silence. Early v. State, 1 Tex. Cr. App. 248; Hipple v. State, 191 S.W. 1150; *Page 478 80 Tex.Crim. R.. The latter case was affirmed by a majority opinion, Judge Davidson dissenting. On rehearing, Judge Morrow, who succeeded Judge Harper, wrote the opinion reversing the case and stated the law which we consider to be controlling.
The State contends that inasmuch as the trial court found the jury could not agree, this case should be distinguished from the foregoing cases, which placed the reversal on the ground that the judge found there was no probability of an agreement. Plausible as is this argument, we do not consider it in accord with the holdings of this court and are reluctant to set aside the law as it has been written by White, Hurt, Davidson and Morrow on a question so vital to personal rights.
Again, it is said the willingness of appellant to let the jury be discharged, as disclosed by his evidence on the hearing, should be construed as an agreement on his part. We do not understand the authorities to so hold and the argument is not logical.
The judgment is reversed and the prosecution ordered dismissed.
ON MOTION FOR REHEARING.