Nov. Term,

1859.

BACOT

V. ВАСОТ.

How could such a denial have been serious, when he had taken the pocket-book openly, and with an announcement of the purpose with which he took it? Which act is to be regarded as most expressive of intention?

But we do not propose to decide the case upon the evidence.

The defendant applied for a new trial in order that he might obtain the evidence of Kerr, that he (Keely) had gone back at his (Kerr's) suggestion, to take Radcliff's pocket-book, Kerr knowing that there was money in it. Kerr was a railroad hand, and Keely did not know where to send for him or his deposition for the trial had. His application brings him within the case of Gibson v. The State, 9 Ind. R. 264.

Per Curiam.-The judgment is reversed.

manded, &c.

H. O'Neal, for the appellant.

Cause re

J. E. McDonald, Attorney General, for the state.

Friday, March 9, 1860.

BACOT V. BACOT.

APPEAL from the Elkhart Circuit Court.

Per Curiam.-No exceptions having been taken on the the trial of this cause, the judgment must be affirmed. The judgment is affirmed with costs.

J. L. Ketcham and I. Coffin, for the appellant.

A. A. Hammond, J. E. McDonald, and A. L. Roache, for the appellee.

McCORKLE v. THE STATE.

Nov. Term, 1859.

MCCORKLE

V.

Where a defendant, to obviate the necessity of returning the indictment to the THE STATE.
grand jury for a correction of the date at which the offense was laid as hav-
ing been committed, consented to the correction in open Court, and to a
waiver of record of all objection, and then pleaded to the indictment, and
afterwards moved to quash on account of the correction, it was held, that
the motion was correctly overruled.

The discharge of a jury in possession of a criminal cause upon a valid indict-
ment, not called for by imperious necessity, and without the consent of the
defendant, operates as an acquittal, and bars another trial; but, as a general
rule, such discharge, with the consent of the defendant, is not a bar.
Such discharge, in the court-house, in presence of the officers of the Court, the
defendant, and his counsel, entered of record by the defendant's consent, in
pursuance of the consent of the Court previously given in session, is not a
bar, though the judge be absent at the time; and the record of the discharge,
and of the manner of it, cannot be contradicted on a subsequent trial.
PERKINS, J.-The consent of the Court to the discharge, is not necessary.
A verdict may be returned on Sunday; and the Court may sit on that day to
receive it, and to receive any motion or order touching it, and the discharge
of the jury rendering it.

Error cannot be assigned upon the ruling on an application for a change of

venue.

The Courts will scarcely tolerate a second application on the same ground, at the same term, for a continuance.

The defendant, in a criminal case, may waive his right to be present when the
witnesses are examined; and if he voluntarily absent himself without leave,
he will be deemed to have done so.

In this case, the defendant and his counsel having absented themselves, the
Court issued a bench-warrant for the defendant, and after appointing counsel
for the defendant, proceeded to the examination of witnesses in his absence.
Held, that there was no error.

The exact sums laid in an indictment for larceny as having been stolen, need
not be proved.

Where, upon the return of the verdict, it is explained to the prisoner, and he

moves for a new trial and in arrest, and is fully heard upon the motions, he cannot object on appeal that he was not asked what he had to say why judgment should not be pronounced.

If the defendant and his counsel, in a criminal case, voluntarily absent themselves for the purpose of defeating a trial, he cannot complain that his case was prejudiced with the jury by such absence.

14 39 151 328

14

39

168

311

f168

313

APPEAL from the Wayne Circuit Court.

Tuesday,
May 15,

PERKINS, J.-James A. McCorkle was indicted in the 1860. Wayne Circuit Court for larceny. On being arraigned, he moved to quash the indictment on account of the date at

Nov. Term, which the offense was laid as having been committed;

V.

THE STATE.

1859. whereupon the state proposed to return the indictment to MCCORKLE the grand jury for correction. To obviate the necessity for Such return, the defendant withdrew his motion to quash, and consented to a correction, in open Court, of the mistake in the date, and to an entry of record of a waiver of all objection, and pleaded not guilty to the indictment.

At a subsequent stage of the proceedings, he renewed his motion to quash, on account of such correction in the indictment. The motion was correctly overruled.

The cause was given to the jury impanneled to try it. After they had been out about two days, the Court standing open and unadjourned, the judge informed the counsel, while all parties were in Court waiting upon the action of the jury, that the jury might be discharged without giving a verdict, they not being able to agree, whenever the defendant should consent to such discharge. This was sometime in the day on Sunday. Between seven and eight o'clock in the evening of the same day, the bailiff brought the jury into the court-room, the judge being at the time six miles distant, but the clerk, the counsel, and the defendant being personally present, and the jury reporting that they could not agree, the defendant and his counsel consented that they should be discharged without giving a verdict, and they were accordingly discharged, and the discharge entered of record, with the consent, pursuant to the previous permission of the Court.

On a subsequent day in the term, the defendant moved to be released from his recognizance, and from further prosecution, on the ground that the discharge of the jury, under the circumstances above related, operated as an acquittal, and precluded another trial upon the pending indictment; but the motion was overruled.

The law is well settled that, the discharge of a jury in possession of a criminal cause, upon a valid indictment, not called for by imperious necessity, and without the consent of the defendant, operates as an acquittal, and bars a further trial. Ind. Dig., p. 362, § 12.

Equally well is it established, as a general proposition,

Nov. Term,

V.

that such discharge with the consent of the defendant, is not a bar to another trial for the same offense. This is 1859. conceded in the Courts of Pennsylvania, where the most MCCORKLE rigid doctrines on this subject are held. In Peiffer v. The THE STATE. Commonwealth, 15 Penn. St. R. 468, Chief Justice GIBSON draws a distinction between a consent to the separation of the jury during the progress of the trial, and their final discharge without rendering a verdict. He says: "In this case the jury were allowed to separate after they were impanneled and sworn. True, that took place with the prisoner's consent; but there is right reason and sound sense in Chief Justice ABBOTT's remark in Rex v. Walfe, that he ought not to be asked to consent. Who dare refuse to consent when the accommodation of those in whose hands are the issues of his life or death, is involved in the question? He would have to calculate the chances of irritation, from being annoyed on the one hand, or of tampering on the other. The law is undoubtedly settled by precedent, that a prisoner's consent to the discharge of a previous jury, is an answer to a plea of former acquittal, but the instant a jury is discharged, the prisoner's life is no longer in their power; or, if he should be the cause of their being sent back to protracted confinement, the value of a single chance in his wretched condition would disarm their resentment."

But it should be here observed that, in this state, it is the uniform practice to allow the jury in a criminal, as well as in a civil cause, to separate, with the consent of parties, during the progress of the trial. Evans v. The State, 7 Ind. R. 271.

Conceding, however, that the consent of the defendant. will prevent the discharge of the jury from operating as an acquittal, the question arises where and how must that consent be given? Counsel say, only in the presence of the Court. In this we cannot concur. It is our unanimous opinion that a discharge in the court-house, in presence of the officers of the Court, the defendant, and his counsel, entered of record by the defendant's consent, in pursuance of the consent of the Court, previously given in

Nov. Term, session, is such a consent as will prevent the discharge ope1859. rating as a bar to another trial; and that the record of the MCCORKLE discharge, and the manner of it, cannot be contradicted on THE STATE. a subsequent trial.

V.

This is conclusive of the point in the case at bar. But the writer of this opinion, speaking only for himself on this single topic, goes further. He does not, think the permission of the Court to discharge, necessary.

After the jury have retired in possession of the cause, the Court can have no communication with them during their deliberations. Hall v. The State, 8 Ind. R. 439. It is the duty of the bailiff having them in charge, to keep them in close confinement till they have agreed upon a verdict, no inevitable accident preventing. The Court cannot permit him to discharge them, nor compel the defendant to do so. It is solely a matter in the power and discretion of the defendant himself, so far as his consent is concerned. The discharge need not necessarily take place upon, but it cannot except by, his consent. And whenever he announces his willingness that the jury may be discharged without giving a verdict, and the discharge takes place upon that announcement, whether by the bailiff or the Court, or both in concert, the defendant is estopped to claim the discharge as an acquittal. The question is one of fact, in such a case, in relation to the expressed consent of the defendant, given with the view to the discharge of the jury in pursuance of such consent, whereby he agrees, having calculated the chances, to waive the present and try a future chance for acquittal. It is the every-day practice for the jury, during term time, to return their verdict to the clerk in the temporary absence of the Court. See Wright v. The State, 11 Ind. R. 569. Now, suppose when the bailiff brings in the jury, in such absence of the Court, instead of handing up a verdict they should announce, the defendant and his counsel being present, that they had not agreed, and could not agree, upon a verdict, and the defendant should then request that they be discharged from the further consideration of the cause, and the bailiff shall thereupon comply with the request.