At the May term of the Jefferson (circuit court, Doctor T. Lee was indicted and tried for the murder of Ida Maria Dota, alias Ida Maria Lanfair, the indictment charging the murder to have been committed on the 22d day of September, 1869.
It appears from the transcript that the defendant plead not guilty, to which issue was joined, a jury impaneled, the witnesses sworn and put under the rule, and the cause stated to the jury by counsel, for both the defendant and the State. At this stage of the proceedings, the attorney for the State suggested to the court a variance between the date on which the murder was alleged in the indictment to have been committed and the date alleged in the original affidavit. Whereupon the court below dismissed the indictment, and referred the case to the grand jury, then in session, who found and presented to that court another indictment, charging Lee with the murder of the said Ida Maria Dota, alias Ida Maria Lanfair, on the 1st day of February, 1870.
Upon the second indictment the defendant was arraigned, and interposed two pleas: First, Former acquittal of the offense charged in the indictment by the judgment of that court; and, second, “That the State ought to be barred in this behalf, and ought not further to prosesute her said indictment against him, because he says that he has once before this time been put in jeopardy of his life for said offense, by being put upon trial in the circuit court of Jefferson county, at the present term thereof, on the 30th day of May, 1870, under an indictment, good in law, found by the grand jury of said county, at said term, in which said trial the jury was impaneled, the witnesses for the State and the defendant were sworn and put under the rule, the indictment read to the jury, and the case stated by both the counsel for the State and defendant, at which stage of the trial, without the consent of the defendant, the court set aside the indictment, discharged the jury, remanded the defendant to prison, and referred the case again to the grand jury, etc.
To the first plea the State took issue, and demurred to the second plea. The court below sustained the demurrer to the defendant's second plea; to which ruling of the court the defendant excepted.
The cause was tried and the defendant found guilty of murder in the first degree.
The defendant moved for a new trial upon the following grounds:
First. That the court erred in sustaining the demurrer to the defendant’s second plea.
Second. Instructions asked for by the State.
Third. That the court erred in refusing to give the first instruction asked for by the defendant.
Fourth. That the verdict is contrary to law and evidence.
The court below overruled the motion of the defendant for anew trial, and pronounced the sentence of death upon the defendant, from which he appealed.
The first question demanding attention is that raised by the first ground set up in the motion for a new trial, that the court below erred in sustaining the demurrer to the defendant’s second plea, which plea we have thought proper to copy into the statement of this case.
The principle involved in the provision of the Constitutions of most of the States of the Union, as well as that of the United States, that no person shall be subjected for the same offense to be twice put in jeopardy of life and limb, was borrowed from the common law; and, indeed, it has been much doubted whether those constitutional provisions amount to anything more than the common law doctrine involved in the plea of autrefois acquit, which plea is founded “upon the principle that no man shall be placed in peril of legal penalties, more than once, upon the same accusation.” Wharton, in his treatise on Criminal Law, p. 574, says that “at common law this doctrine means nothing more than that when there has been a final verdict, either of acquittal or conviction, on an adequate indictment, the defendant cannot a second time be placed in jeopardy for the particular offense; and, at the first glance, the constitutional provision appears nothing more than a solemn asseveration of the common law maxim.”
There seems to be a conflict in the authorities as to when the jeopardy attaches. Under the provisions of the Constitutions of some of the States, their courts hold that the jeopardy attaches from the moment, when the defendant, having pleaded to the indictment and a traverse jury is impaneled and sworn to-try the cause — in short, when the tribunal is complete in itself to try the cause, and the defendant properly befoi’e it, defending, having answered; while the courts of some other States incline to the opinion that the jeopardy of the Constitution begins only with a verdict rendered.
The provision of the Bill of Rights contained in the Constitution of this State, differs perhaps with that of most, if not all the other States. Section 9, of the Bill of Nights of our Constitution, provides that “no person, after having been once-acquitted by a verdict of jury, for the same offense shall be again put in jeopardy of life or liberty, but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury and commit or bail the accused for trial at the same or the next term of said court.”
It is evident to our minds that the language of our Constitution, above quoted, shows that it was the intention of the convention that framed and adopted that instrument, to place a limitation upon the legislative branch of the government;, that is, that no law should be enacted authorizing the imposition of penalties on persons who had once been acquitted by a jury for the same offense; but this does not deprive the prisoner of his common law right. It is quite as evident that the convention intended by the same clause, that in a criminal prosecution, if the jury disagreed, the court, in its discretion, might discharge them and hold the accused to be tried upon the same-indictment by another jury. In the latter case, the Constitution is but a declaration of what the law was held to be before.
Judge Cooley says that, “in considering State Constitutions, we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they' must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the .rights of the governed.” The learned judge quotes approvingly the language of the Hon. M. Bates, in Hamilton v. St. Louis county court, 15 Mo. 13, who said : “What is a Constitution, and what are its objects ? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence of personal and political freedom;. it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for ■their protection in the enjoyment of the rights and powers ■which they possessed before the Constitution was made, it is ■but the frame-work of the political government, and necessarily based upon the pre-existing condition of laws, rights, .habits, and modes of thought. There is nothing primitive in it; it is all derived from a known source. It pre-supposes an •organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written Constitution is, in every instance, a limitation upon the powers of government in the hands of agents, for there never was a written republican Constitution which delegated to functionaries all the latent powers which lie dormant in ■every nation, and are boundless in extent, and incapable of definition.” Cooley on Constitutional Law, 37.
The authority conferred upon the courts, in criminal prosecutions, by the provision of the Constitution referred to, to discharge the jury, etc., is confined to cases where the jury “is ■divided in opinion,” and cannot, we think, be construed to extend beyond that.
Upon examining the indictment first presented against the defendant, upon which he was arraigned and upon which he plead, and a jury was impaneled and sworn to try the issue, we find it sufficient in form and substance to have warranted .a conviction upon the proof introduced on the second trial. The statement in the indictment as to the time at which the •offense was committed, is not material. If an indictment for murder show that the murder was committed at some time prior to the time of finding the indictment, it is sufficient. Sections 128 and 130 Criminal Code.
Finding that the indictment upon which the defendant was first arraigned, and which the court below dismissed, was sufficient, the question recurs: can the court dismiss such an indictment, after the proceedings under it had progressed as far as in this ease, and the accused held to answer another indictment preferred against him for the same offense? Or, was he not entitled to a trial by the jury impaneled and sworn to try the issue on the former indictment?
The eighth section of the Bill of Rights, contained in our Constitution,guarantees to all persons accused of, and proceeded against, for crime, “a speedy and public trial by an impartial jury of the county or judicial district wherein the crime shall have been committed.”
This court, in Stewart v The State, 13 Ark., 720, Chief Justice Watkins delivering the opinion, in referring to the con•stitutional declaration of rights, announced the sound and wholesome doctrine that “this provision, and all those of a similar character, are declaratory of the sense of the people concerning great fundamental principles, designed as limitations upon the powers of the departments of government, in the enactment, the interpretation and the execution of the laws.” In that ease the defendant sought to be discharged upon the ground of the length of time intervening between his arrest and imprisonment and his application for a discharge, which was refused; but in that case the defendant contributed to the delay — -first, by taking a change of venue; second, upon his own motion obtaining a continuance, and third, by moving to quash the venire and set aside the panel of petit jurors, etc.
The learned Judge, in Stewart v. The State, further said: “That an accused is entitled to a speedy trial, is a proposition which no one- will question; but what is a speedy trial, and what consequence will follow, where a speedy trial is denied, are questions that have to be considered with reference to the existing law, and its practical operation, in the determination of individual rights.” This doctrine, applied to the law existing at the time of the arraignment of the defendant in this case, upon the indictment first preferred against Mm, did not authorize the dismissal "We find no law authorizing the dismissal of a valid indictment at that stage of the ^proceedings, nor does it appear by the transcript of the record before us, that any great or pressing necessity existed, to tbe end that justice might be done, or the law vindicated, by dismissing the indictment and discharging the jury.
It is true that the Code of Criminal Practice, section 178,, authorizes the dismissal, by the court, of indictments for any objection to their form or substance, taken on the trial, or for variance between the indictment and the proof, and that such dismissal shall not bar another prosecution for the same offense. Hut does that statute confer the power upon the court to dismiss a valid indictment, after the cause had progressed as-far as this case had, without the consent of the accused, and hold him for trial upon another indictment for the same offense?' Bishop, in his treatise on criminal law, volume 1, section 224,. says: “ The law delights in the life, liberty and happiness of the subject, and deems statutes which deprive him of these, or1 of his property, however necessary they may be, in a sense-odious.” It is a familiar principle of the law, that statutes,, and the same principle applies to Constitutions, are to be literally interpreted in favor of persons charged with crime. According to this rule of construction, it would seem that the-courts are confined in their power to dismiss an indictment, in a case like the one at bar, to formal or substantial defects, or' a variance between the indictment and the proof, and that such power does not extend to an indictment good in form and substance, as we have seen the indictment in this case was. Mr. Bishop, (see Crim. Law, vol. 1, sec. 864,) in discussing the-doctrine of former jeopardy, says: “ It must be borne in mind that the constitutknial provision under consideration is not the only impediment to the re-hearing of a criminal cause. It is,, indeed, the only one not removable by legislation; but when legislation has not interfered, and the question depends on common law principles, there may be various other absolute-bars to a further trial.”
In the case of Klock v. The People, Parker’s Crim, Rep., 676, decided by the Supreme Court of New York, the defendant was indicted and put upon trial for the crime of arson. During tbe trial, upon the motion of the prosecuting attorney, without the consent and against the objection of the accused, a juror was withdrawn and the jury discharged. At the ensuing term the district attorney again moved the trial of the indictment. The defendant set up, by way of plea, the foregoing facts, and, upon error, the court held that the accused was entitled to be discharged. The court, in that case, said: “ The true ground of the objection lies back of the Constitution, and is found in the principles which have been deemed •essential to the full and fair protection of individuals accused of crime, and to secure to them a speedy and impartial trial, and the best means of vindicating their innocence. The practice and the views of courts of criminal jurisdiction, upon questions somewhat analogous to that presented in this case, have passed through some modifications. Kent, J., in People v. Olcott, 2 J. C., 301, refers in detail to the earlier cases bearing upon the point; and, while his review of the cases shows distinctly the modifications and changes which have taken place in the practice of courts, it also% shows the great tenderness .and care manifested by the judges for the rights of the accused, and to secure to them every right essential to their defense, and an anxiety to protect them against any act or omission of the government, or the public prosecutor, which could injuriously affect them.”
It was held, in The State v. Walker, 26 Ind., 346, that when the accused, in a criminal prosecution is put upon trial, on a valid indictment, before a legal jury, and the jury is discharged by the court without good cause, and without the consent of the defendant, he has incurred the first peril, and the discharge of the jury is equivalent to a verdict of not guilty. So, also, in the case of The People v. Barrett and Ward, 2 Cains' Cases, 100 to 304, the Supreme Court of New York held that “where the jury were discharged against the consent of the defendants, (in a case of misdemeanor only), because the district attorney was not prepared with evidence to support the prosecution, such a discharge was equivalent to an acquittal, and the defendants could never be brought to trial again for the same offense.” See Commonwealth v. Cook et al., 6 S. and R, 777, and cases there cited; John Mounts v. The State of Ohio, 14 Ohio, 295, and cases there cited.
"We do uot wish to be understood as intimating that the court could not, in any other cases than those mentioned by statute, discharge the jury and hold the defendant for trial at another time and by another jury. Doubtless the court would have that power when a criminal cause has been submitted to the jury, and they have retired to consider of their verdict, and it is found to be impossible for them to agree, the court could discharge the jury and hold the accused for trial. So, also, if, during the progress of the trial, one of the jury should become so ill as to be unable to sit in the panel, or if the accused should become sick and unable to be present and proceed with the trial.
Bishop lays down the doctrine to be that, “ Whenever, after a trial has commenced, whether for misdemeanor or for felony,, the judge discovers any imperfection which will render a verdict against the defendant, either void or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of any future proceedings. "Whenever, also, any thing appears showing plainly that a verdict .cannot be reached within the time assigned by law for the holding of the court, he may adjudge this fact to exist; and, on making the adjudication matter of record, stop the trial with the like result as before. But, without the adjudication, the stopping of the trial operates to .discharge the prisoner. In other words, when the record shows the defendant to have been in actual jeopardy, he is protected thereby from further peril for the same alleged offense. .But when it shows, also, in addition to this, something which disproves the peril, it does not show the-peril, whatever else it shows, and therefore it does not protect him.” Vol. 1, 873.
Entertaining the views above expressed, we think the true rule to' be that, whenever the accused has been arraigned, a jury impaneled and sworn, and the cause given them in charge, as was in this case, and there being no objection interposed by the accused to the indictment or the other proceedings, we will presume that he was demanding his constitutional right to a speedy and public trial, by an impartial jury of his country, etc., and the indictment being sufficient, as we have seen, and there appearing by the record to be no other reason for dismissing the indictment than insufficiency, the court would not deny the defendant the right to a speedy and impartial trial by dismissing the indictment. The dismissal of the indictment in this case, we think, under the circumstances, operated as an acquittal of the defendant. The Jefferson circuit court, therefore, erred in sustaining the demurrer to the defendant’s second plea.
There is another error disclosed by the record, which, though not objected to here by the appellant’s counsel, we deem it our duty to notice. The two pleas, of former acquittal, and not guilty, wore submitted to the jury at the same time. The former should have been first tried, and, if the verdict was against him; the judgment upon it would have been that he answer the indictment. In the case of Rex v. Roche, 1 Leach, 160, the court said: “ In pleas of abatement there are two issues, and they are always tried upon separate charges to the-jury. Besides, charging them with two issues at once would lead to the absurdity that, being charged with both, they would be obliged to find upon both; and yet, if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar. They are distinct issues; and the jury must be separately charged with them.” Amer. Crim. Law, vol. 1, sec. 538; Hill v. The State, 2 Yerger, 248; The State v. Copeland, 2 Swan, 262.
The disposition we have made of the questions above dis cussed, are sufficient to determine this case, and we deem it unnecessary to notice the objections, to the ruling of the coufit below, in giving and refusing its instructions to the jury.
The judgment of the circuit court is, for the errors aforesaid, reversed and the cause remanded, with directions to overrule the demurrer to the defendant’s second plea, and to proceed.in the cause according to law, and not inconsistent with this opinion.