O. M. SEARS, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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O. M. Sears was indicted for aggravated assault but convicted of assault and battery. On writ of error, the Florida Supreme Court affirmed the conviction, rejecting Sears' claims that the late arraignment placed him in double jeopardy and that the verdict was unsupported by evidence.
The late arraignment did not violate double jeopardy because no legal jeopardy attached prior to arraignment. The arraignment at that stage was proper procedure necessary for a valid judgment. The verdict of guilty of assault and battery was supported by ample evidence.
“Prior to arraignment there was no legal jeopardy, and what was done, as shown by this record, was no more than the court's duty in order that a valid judgment could be entered upon the verdict.”
Establishes the holding that jeopardy does not attach before arraignment, so late arraignment does not violate double jeopardy.
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Join FLexlaw to unlock all legal intelligenceSears was indicted for aggravated assault. During trial, a jury was sworn and the State began examining a witness before Sears' attorney objected that…
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West, C. J.
The indictment in this ease charges aggravated assault. The verdict returned was guilty of assault and battery. Writ or error was taken from this court to review the judgment imposed.
The record discloses that a jury was chosen and sworn “to try the issues in said causethat a witness on behalf of the State was called and replied to certain preliminary questions propounded by the State Attorney, after which objection was interposed on behalf of the defendant to any further examination of the witness on the ground that defendant had never been arraigned. Thereupon, on motion defendant was arraigned and entered a plea of not guilty. To this action the defendant objected and noted an exception. The State then announced ready for trial, but the defendant objected on the ground that he had been once in jeopardy for said offense and should not again be placed on trial upon the charge contained in the indictment. To an adverse ruling an exception was reserved by defendant. The State tendered the same jury and defendant then claimed the right to peremptorily challenge some of them, which he was allowed to do, and others were called. After exhausting his challenges the State again tendered and the defendant accepted the jury. The trial then proceeded with the result stated.
When the court’s attention was called, as appears from the record, to the omission, due to oversight, to arraign the defendant, it was proper to then arraign him and proceed with the trial. Prior to arraignment there was no legal jeopardy, and what was done, as shown by this record, was no more than the court’s duty in order that a valid judgment could be entered upon the verdict. United States v. Aurandt, 15 N. M. 292, 107 Pac. Rep. 1064, 27 L. R. A. (N. S.) 1181; United States v. Riley, 5 Blatchford 204; State v. Horine, 70 Kan. 256, 78 Paec. Rep. 411; State v. Rook, 61 Kan. 382, 59 Pac. Rep. 653; Browning v. State, 54 Neb. 203, 74 N. W. Rep. 631; Mays v. State, 50 Tex. Crim. 165, 96 S. W. Rep. 329; Disney v. Commonwealth, 9 Ky. L. 413, 5 S. W. Rep. 360; State v. Heard, 49 La. Ann. 375, 21 South. Rep. 632.
The only other assignment insisted upon is that there was error in overruling defendant’s motion for a new trial. The ground of this motion is that the verdict is not supported by the evidence. It is unnecessary to say more than that the evidence is ample to sustain the verdict finding defendant guilty of assault and battery. So the judgment is affirmed.
Affirmed.
Whitfield, Ellis & Terrell, J. J., concur.
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Troop v. State, 98 Fla. 385 (Fla. 1929)…State, 110 So. R. 528; Ming v. State, 89 Fla. 280, 103 So. R. 618; Platt v. State, 65 Fla. 253, 61 So. R. 502; Davis v. State, 76 Fla. 179, 79 So. R. 450; Towsend v. State, 116 So. R. 7; Coker v. State, 83 Fla. 672, 93 So. R. 176; Knowles v. State, 89 Fla. 490, 97 So. R. 716; Davis v. State, 76 Fla. 179, 79 So. R. 450. By what is said herein we neither hold nor infer that McMillan ’s testimony as to the identity of these defendants must finally and conclusively yield to the contradictory testimony interp…
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Lyll McLeod v. State, 128 Fla. 35 (Fla. 1937)…loses, by any adjudication. As long as the record affirmatively showed that the defendant had not been arraigned on the information, there was no issue joined for the jury to try and, therefore, no issue for the jury to determine. In Sears v. State, 89 Fla. 490, 104 Sou. 857, we held: “When the court’s attention was called, as appears from the record, to the omission, due to oversight, to arraign the defendant, it was proper to then arraign him and proceed with the trial. Prior to arraignment there was no…
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State ex rel. Frank J. Ryan v. Hon. A. D. McNeill, 141 Fla. 304 (Fla. 1940)…n no arraignment of the defendant on the information and no plea to the indictment, so there was no issue to be tried by the jury and consequently the defendant was not put in jeopardy before the jury was discharged in this case. See Sears v. State, 89 Fla. 490, 104 So. 857; McLeod v. State, 128 Fla. 35, 40, 174 So. 466; U. S. v. Riley, 5 Blatchf. 204; Green v. State, 28 A. L. R. 842, headnote 5; 16 C. J. 236-243-4; Colleys Const. Lim. (8th Ed.), p. 687, col. 2. Where the defendant merely announces by cou…1 / 2
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