This This was an indictment for murder.
The ease was before us at the last term of this Court (see 12 Ind. R. 448), where the facts and reasons upon which a reversal of the judgment below were based; are fully set forth.
The record in the case then before us showed that a motion had been made to discharge the defendant from custody. But at the time the motion was made, the Circuit Court was, as we then decided, attempting to hold an unauthorized sitting. The jury had been kept in custody beyond the regular term of the Court. The verdict was received and the judgment entered on the Monday after the term expired, although the record showed that the verdict was agreed upon during the term, but was not returned into Court because of the absence of the judge. It was held that the record failed to show any legal reason for such absence, or for the prolongation of the term beyond the regular time fixed by law. The consequence was, that the proceedings had, after the expiration of that time, were held to be void; and consequently that we could not consider a motion which was then made to discharge him, further than to show the position the prisoner occupied in reference to the proceedings then had. The case was, therefore, remanded for further proceedings. The defend*216ant, at the first term of the Circuit Court thereafter, moved that he be discharged from custody. The motion was overruled.
This ruling is now assigned for error.
The constitution provides that “No person shall be put in jeopardy twice for the same offense.” Art. i., § 14.
When a valid indictment has been returned by a competent grand jury to a Court having jurisdiction; the defendant has been arraigned and pleaded; a jury been impanneled, sworn, and charged with the case; and all the preliminary things of record are ready for the trial; the jeopardy contemplated by the constitution has then attached, and the defendant is entitled to a verdict. 1 Bish. Crim. Law, 660.—Whart. Crim. Law, 574.— Wright v. The State, 5 Ind. R. 290, 527.—7 id. 324. The defendant may, by his consent, or various acts from which such consent will be presumed, waive this constitutional right. 1 Bish. Crim. Law, 657.—6 Cush. 560.—37 Maine R. 156.— Whart. Crim. Law, 591. Or unforeseen occurrences may intervene, which will operate to withdraw from the prisoner the benefit of this privilege. Whart. Crim. Law, 588.—1 Bish. Crim. Law, 667.-2 Mo. R. 166.—9 Leigh. 613.—3 Rawle, 498.-4 Halst. 256.-2 Grat. 567.-7 id. 662.-6 S. and R. 577.—10 Yerg. 532.
But when the indictment is valid, and the proceedings are regular, before a tribunal having jurisdiction, down to the time the jeopardy attaches, there can be no second jeopardy allowed in favor of the state, on account of any lapse or error at a later stage. 1 Bish. Crim. Law, 665.— Wright v. The State, 7 Ind. R. 324.—4 Blackf. 345.—8 id. 526.—1 Eng. 169, 259.—Mart. and Yerg. 137.
At the last term we decided there had been a lapse—an error of the Circuit Court. The record does not show that the defendant, in any manner, waived his rights. He was once in jeopardy, and in consequence thereof, and of that error, he is protected by the constitution from being again placed in jeopardy for the same offense. The Circuit Court should have dischafged him.
J. Hughes and D. W. Voorhees, for the appellant. J. E. McDonald and I. N. Pierce, for the state. Per Curiam.The judgment is reversed with directions to the Circuit Court to sustain the motion and the defendant from custody.