I dissent to that part of the opinion remanding this case for a new trial. I do so because it constitutes double jeopardy. In so dissenting I recognize that all reversals for new trials do not constitute double jeopardy.
Here the jury was impaneled and sworn. After the evidence was heard appellant moved for a directed verdict which we now hold the trial court should have granted because there was no legal evidence to sustain a conviction. If the trial court had granted the motion, appellant would have been discharged and former jeopardy would have attached.
In Whitmore v. State, 43 Ark. 271 (1884), we stated:
“A prisoner is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment which is sufficient in form and substance to sustain a conviction, and a jury is charged with his deliverance. And a. jury is thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will or by discharge of the jury.”
In State v. Taylor 180 Ark. 588, 22 S.W. 2d, 34 (1929), we held that a directed verdict of acquittal, even though erroneous, operated as a bar to a future prosecution. See also State v. Gray, 160 Ark. 580, 255 S.W. 304 (1923).
When the trial court lets the jury return its verdict before ruling the evidence is not sufficient to sustain a conviction, has the defendant’s life been put in less jeopardy? If the trial court waits until a motion for new trial to rule that the evidence is insufficient to sustain the conviction, is not the acquittal just as effective as though the matter had been taken away from the jury?
When we rule on appeal that the trial court should have directed a verdict of acquittal, why is not the defendant just as effectively discharged as he would have been had the trial court correctly so ruled before the appeal? Has not the State had its day in court?
It is true that in civil cases we sometimes remand a case for a new trial while holding that a directed verdict should have been granted, but in so doing we are but giving cognizance to the practice whereby trial courts under some circumstances allow plaintiffs the option of taking a non-suit before granting a motion for a directed verdict. However, as pointed out above, the double jeopardy clause, Ark. Const. Art. 2, § 8, prevents a nolle prosequi of a criminal prosecution once the jury has been impaneled and sworn.
In dissenting, I am not unaware of the rule that a person convicted of a crime waives his constitutional protection against double jeopardy when a verdict or judgment against him is set aside at his own instance, either on motion in the lower court or on appeal. However, I am unable to see how or why the waiver rule should be applied when the result of the ruling on appeal is that the defendant should have been acquitted by either the trial court or the jury.
Therefore, I respectfully dissent from that part of the opinion remanding the case for a new trial.