This appeal results from the refusal of the Craighead Circuit Court to dismiss forgery charges against appellants on grounds of double jeopardy. The facts, briefly, are as follows:
Appellants, James D. Cody and Gardner Lee Muse, were arrested and incarcerated in the Craighead County Jail on November 17, 1962. An information charging them with forgery was filed ten days later in the Circuit Court. Neither defendant was able to make bond, •and they have remained in custody since their arrest. Five months later the court was advised that appellants were indigent and unable to retain counsel; the court, on April 17,1963, appointed counsel to defend appellants on the charge, and the next day, April 18, the trial began. The jury was selected, impaneled and sworn, and the state proceeded to call five witnesses, including merchants, whose testimony dealt with the claimed forgery, and officers, who testified to a confession by Muse and certain oral statements by Cody. Defense counsel moved for a mistrial after the Muse confession was read, because the confession included incriminating statements relative to Cody. The jury was instructed that the evidence should not be considered as to Cody, and the motion for mistrial was overruled. At the conclusion of the testimony of these five witnesses, the state rested. Charles Muse, a brother of defendant Muse, was placed on the stand, evidently for the purpose of testifying to mental incompetency on the part of his brother, dating back to a harrowing war experience, but when Charles was asked, “Where has your brother been in the years since World War II?” the Prosecuting Attorney objected, and the court sustained the objection. Appellant, Gardner Muse, then testified, stating, inter alia, that he was drunk and had been in that condition for two days at the time the checks were written; that he had no recollection of writing same, and subsequently mentioned that he had taken a number of shock treatments. At the conclusion of his testimony, the trial was- recessed over the weekend. When the court reconvened on Monday morning, the trial judge in chambers made the following statement :
“On Thursday, April 18, 1963, at about 4:45 P.M. this Court was recessed until this morning. At the time of the recess the defendant, Gardner Lee Muse was on the stand. The defendant Muse had entered a general plea of not guilty to the crime of forgery upon which he is being tried. Prior to the commencement of the trial no notice had been given or indication made that insanity would be a defense. During the course of examination of witnesses, the testimony drifted toward the defendant’s actions tending to lead to a showing of the possibility of insanity. Certain rulings were made by the Court relative to the issue of insanity and of the competency of testimony relating thereto. During the adjournment of this case, the Court has had an opportunity to further consider the matter and the law pertaining thereto and now makes this ruling: under the general plea of not guilty, this defendant has the right to avail himself of any defenses which the testimony adduced in this cause tends to establish including that of insanity. Any ruling heretofore made by the Court in conflict herewith shall be superseded by this ruling. If any of the parties wish to recall any of the witnesses for further examination in view of this ruling, they will be permitted to do so.”
--The state, through the Assistant Prosecuting Attorney, then moved the court to declare a mistrial in the case, and order Muse committed to the Arkansas State Hospital for observation and examination. This motion was made on the basis of; Ark. Stat. Ann. § 43-1301 (Supp. 1961), the pertinent portion of which provides:
“If the trial had already begun when the issue of insanity is raised, and the court deems it necessary for the proper administration of. justice that a mistrial be declared, it shall be the duty of the judge to declare such mistrial, and then to proceed as herein provided. * * *”
Defense counsel objected, and the court denied the motion, stating:
“If after proceeding with the evidence it is shown that there is a possibility of insanity, then the Court under the statute can exercise its discretion as to declaring a mistrial and have him sent to the State Hospital for observation, or in the alternative, may have him examined by two local doctors. At this time the Court finds nothing in the record to justify a mistrial for observation of the defendant.”
Charles Muse, the brother of appellant, was then recalled to the stand, and testified that, the mental condition of his brother had radically changed after the war. He related a number of incidents which tended to show a highly nervous and incompetent condition, and further testified that his brother had, in 1960, been a patient in the Psychiatric Ward at Kennedy Hospital, where he had received a number of shock treatments, and had also been committed to the Mississippi State Hospital twice. Following the testimony of this witness, the court called a short recess, and in chambers made the following statement to counsel:
“Gentlemen, in view of the trend of the testimony that has been adduced from this particular witness, the brother of the defendant, and a close associate, the court deems it necessary for the proper administration of justice to declare a mistrial and commit the defendant to the State Hospital for observation.”
Defense counsel strenuously objected, and likewise vigorously objected and noted exceptions when the court announced that it was declaring a mistrial also as to Cody, counsel announcing that he would plead double jeopardy as to both defendants. The court entered its order directing that Muse and Cody be delivered to the State Hospital for Nervous Diseases for the purpose of observation and examination, and directed that all proceedings in the case be held in abeyance pending the completion of such examinations. Appellants filed their motion seeking dismissal of the cause on grounds of ■former jeopardy, and the court entered its order overruling such motion, and granting an appeal.
Before discussing appellants’ contentions, we might first make mention of one of the arguments advanced by the state. In the instant case the Prosecuting Attorney, after the court had announced that it was declaring a mistrial as to Cody, called attention to the fact that this defendant had already moved for a mistrial himself, and the Prosecutor stated: “At this time the state joins in the motion * * * that a mistrial be granted in this case.” Counsel for appellants then asked to withdraw the -motion. It is difficult to determine from the record what action was taken by the court in this respect; in fact, the record does not reveal that any order or statement was made by the court relative to this request. It does not appear, however, that the court’s order declaring a mistrial was in any wise based on defendant’s earlier motion. Of course, this motion had already been passed upon and was not at issue when the insanity of Muse was suggested by the evidence.
The Attorney General argues that Cody, by his earlier request for mistrial, “waived his constitutional right of jeopardy notwithstanding the trial court originally denied the motion * * We do not agree with this argument. The situation is closely akin to the Florida case of State v. Himes, 15 So. 2d 613. In that case, the defendant moved for a mistrial on grounds of the admission of improper testimony (as was here done), and the motion was overruled by the trial judge. Thereafter, the state after it appeared that it would be unable to establish a case, joined in the motion, and the defendant attempted to withdraw his motion, which the court denied, such denial being based upon the fact that the-state had already acquiesced in the motion. The Supreme-Court of Florida reversed the trial court, holding that the defendant should have been permitted to withdraw his motion. Here, too, even if the court had based the mistrial on appellants’ earlier motion (which evidently was not the case), we would reverse, and hold that the motion for withdrawal should have been granted.
Appellants devote the- first point in their brief to the fact that the order overruling the motion to dismiss is appealable, and, among other cases, cite Jones v. State, 230 Ark. 18, 320 S. W. 2d 645. However, the appealability of the order is not at-issue since no motion has been made by the state to dismiss the appeal, the Attorney General apparently conceding that the order is appealable, and that Jones v. State is sufficient authority for that conclusion. While it is true that the second trial has not been set, and it is within the realm of possibility that a second trial would never be held, tbe proceedings need not advance to that extent before tbe issue of double jeopardy can be passed upon. In tbe Jones case, we said:
“When the jury is finally sworn to try tbe case1 (§43-2109 Ark. Stats.), jeopardy has attached to tbe accused; and when, without tbe consent of tbe defendant, express or implied, tbe jury is discharged before tbe case is completed, then2, tbe constitutional right against double jeopardy may be invoked, except only in cases of ‘Overruling necessity.’ ”
Of course, it would be pointless to send a case back for re-trial, necessitating tbe additional expense to tbe county, and depriving tbe defendants of their freedom for months longer, if we feel that tbe contention of double jeopardy contains merit and would eventually be upheld under the facts presented. As stated in Jones v. State, supra:
“If tbe defendant’s claim against double jeopardy contains merit, then tbe Constitution requires that be should be freed; and tbe denial of bis freedom is tbe point at issue. Furthermore, having concluded—as we have—that tbe appellant’s plea of former jeopardy was well founded, it would certainly be putting form above substance for us to hold that he could not prevail at this time on bis motion to discharge; but that be would have to suffer a long and expensive trial before be could bring to this Court the issue of former jeopardy. Justice demands that an accused have bis rights tested and determined speedily. As the Constitution says in Article 2, §13: ‘Every person is entitled . . . to obtain justice . . . promptly and without delay.’ ”
Tbe quoted language is appropriate in tbe case before us since we have concluded that tbe appellants ’ plea of former jeopardy is well founded.
Appellants vigorously argue that Section 43-1301 (heretofore referred to) is unconstitutional in that it, in effect, subjects a defendant to double jeopardy and is thus in conflict with Article 2, Section 8, of the Constitution of the State of Arkansas. We do not agree with this contention. This court has rendered several opinions which hold that the defense of double jeopardy may not be invoked if the court has discharged the jury and declared a mistrial because of “overruling necessity.” McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77; Franklin v. State, 149 Ark. 546, 233 S. W. 688, and cases cited therein. This is in line with the general rule which is found in 22 C.J.S., Section 259, Page 674.
“The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.”
In construing the statute under attack (43-1301) we must do so in view of, and in conformity with, the previous holdings of this court relative to “overruling necessity,” wherein we have stated, that, in such cases,, the constitutional prohibition is not violated. Under our decisions, we think the statute is perfectly valid, and the-court may declare a mistrial when the issue of insanity suddenly enters the case, provided that the circumstances, are compelling or give rise to an emergency over which neither court nor attorney could have any control or which could not have been averted by diligence and care. For instance, if a defendant first showed signs of insanity during the trial,3 or if background facts, which could not have been earlier determined, indicated insanity, or if the prisoner had been represented by counsel who had advised court officials that no issue of insanity would be raised, the court might well be justified in declaring a mistrial because of “overruling necessity.” But the facts in the present case do not conform to those examples.
As far as Cody is concerned, the record reflects neither a plea of insanity nor a single line of evidence that would suggest this appellant to be insane. Even if the mistrial had been justified as to Defendant Muse, there was nothing to prevent the continuation of the trial as to Cody. It is apparent that there was no compelling reason, nor emergency, which made necessary the order of mistrial as to this appellant.
Turning to Muse, the transcript reflects that prosecuting officials had been in possession of the record sheet from the Department of Justice for several months,4 and this sheet lists “S. H. Whitfield,. Miss., Gardner Lee Muse, February 6, 1961, patient.” From the colloquy between counsel, it appears that the sheet also reflected, “S. Hospital, Whitfield, Miss.” While it is true that the record does not reflect the nature of the illness, or the report made by the hospital, we think the mentioned notation was sufficient to suggest to law enforcement officials that further inquiry should be made, particularly since the Arkansas institution for nervous diseases is likewise known as the State Hospital. A letter, telegram, or phone call to the State Hospital at Whitfield would doubtless have enabled these officials to have obtained pertinent information.
As heretofore pointed out, these prisoners had been in jail for five months before an attorney was appointed to represent them. If the Circuit Court had been advised that two indigent prisoners were in the jail, and in need of counsel, that court could have appointed an attorney who would have then had an opportunity to confer with the clients, ascertain, their backgrounds, and apply for an appropriate order before the case was set. [Ark. Stat. Ann. § 43-1304 (Supp. 1961).]
Under the circumstances herein, there was but little opportunity for appointed counsel to acquaint himself with Muse’s past history, since he was appointed one day, and the trial commenced the next.
We hold that Section 43-1301 is valid, and when the issue of insanity is raised after the trial has commenced, the court may, where necessary for the proper administration of justice, declare a mistrial and commit a defendant to the State Hospital for observation. However, by “necessary,” we mean “overruling necessity,” as the term has been used herein.
In the instant case, we find no “overruling necessity, ’ ’ and this view is strengthened by the fact that the court’s action in declaring a mistrial meant that these defendants would remain in jail for a number of months longer, and it would now appear that they have been in custody for about ten months. Article 2, Section 10, of our State Constitution, provides that ‘ ‘ The accused shall enjoy the right to a speedy and public trial * * Appellants vigorously objected and excepted when the court entered its order. We think the objection was well taken, and the court should have granted the motion filed by appellants seeking dismissal of this case against them.
In accordance with the reasoning herein expressed, the court’s order overruling the motion to dismiss on grounds of double jeopardy is reversed, cancelled, and set aside, and this cause is remanded to the Circuit Court with directions to enter an order dismissing Case No. 8255 against these appellants.
It is so ordered.
McFaddin, J., dissents; Robinson, J., concurs.Referring to the original trial.
Emphasis supplied.
In U. S. v. Haskell, Pa., 26 F. Cas. No. 15, 321, the members of a jury reported to the court that one of their fellow jurors, from his actions and conduct, was apparently insane; the jury rendered a verdict of guilty, but when the jury was polled, this juryman, evidently quite agitated, and declaring that he was not “quite collected,” answered, “Not guilty.” From his personal observation of the juror and the reports made from other jurors, the court declared a mistrial and discharged the jury. The next day, the defense contended that the discharge of the jury amounted to an acquittal (raising the double jeopardy argument) which contention was denied. On appeal, the Circuit Court of Appeals held that this was a case of necessity, and that the trial court had not abused its discretion in discharging the jury-under the circumstances.
This record, commonly called “rap sheet,” is compiled through finger-printing, and sets out all arrests, convictions, or entrance into any jail or institution where the finger-prints of a subject are taken upon admission.