For a plea of guilty to be valid in a criminal case it must be affirmatively shown by the record that said plea was made by the defendant voluntarily and was not involuntarily coerced or unfairly obtained. Busby v. Holman, 5 Cir., 356 F.2d 75; Cooper v. Holman, 5 Cir., 356 F.2d 82; Zachary v. Hale, D.C., 286 F. Supp. 237; United States v. Tateo, D.C., 214 F. Supp. 560; Howard v. State, 280 Ala. 430, 194 So.2d 834; Ala. Digest Criminal Law, Section 273. After a trial commences if a defendant pleads guilty the jury must determine the degree of the offense and must fix the punishment and if such is done by the trial judge the sentence is void. Code of Alabama 1940 (Recompiled 1958), Title 15, ยง 277; C.J.S. Criminal Law, ยง 241, pp. 636-641; Murray v. State, 210 Ala. 603, 98 So. 871; Epps v. State, 28 Ala. App. 105, 179 So. 395; Artrip v. State, 41 Ala. App. 492, 136 So.2d 574. A defendant in a criminal case facing the possibility of an unconstitutional punishment is indirectly coerced when his plea is changed from not guilty to guilty after the trial commences. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; Williamson v. State, 5 Cir., 441 F.2d 549; Code of Alabama 1940 (Recompiled 1958), Title 14, ยง 415.
It is well settled that jeopardy attaches when the jury is empaneled and sworn and the indictment is read. See Murray v. State, 210 Ala. 603, 98 So. 871, 872 (1924); Epps v. State, 28 Ala.App. 105, 179 So. 395, 396 (1938); Ex parte Davidson, 736 So.2d 1146, 1148 (Ala.Crim.App.1999). However, nothing in these cases requires that the indictment be read directly after the jury is sworn.
Double jeopardy attaches against a defendant in a criminal case, when the jury has been impaneled and sworn in a court of competent jurisdiction to try the defendant charged, and a sufficient indictment for the offense is read to the jury and pleaded to by the defendant. Murray v. State, 210 Ala. 603, 98 So. 871; Bell v. State, 44 Ala. 393; Prince v. State, 140 Ala. 158, 37 So. 171; Epps v. State, 28 Ala. App. 105, 179 So. 395; Grogan v. State, 44 Ala. 9; Artrip v. State, 41 Ala. App. 492, 136 So.2d 574. Unless something has occurred after the jury is sworn, which in legal contemplation necessitates the withdrawal of the case from the jury, the discharge of the jury without verdict before the expiration of the term, acquits the defendant. Jones v. State, 97 Ala. 77, 12 So. 274; Spelce v. State, 240 Ala. 412, 103 So. 694; Id. Ex Parte Spelce, 212 Ala. 559, 103 So. 705; McCauley v. State, 26 Ala. 135; Bell v. State, 44 Ala. 393; Parham v. State, 47 Ala. App. 76, 250 So.2d 613.
Actually the trial court could not entertain a motion for a mistrial at the time the appellant moved for it due to the fact that no trial had begun. A trial is deemed to begin when a jury of twelve is sworn, and charged with the prisoner, and after evidence has been given. Bell, supra; Epps v. State, 28 Ala. App. 105, 179 So. 395; Murray v. State, 210 Ala. 603, 98 So. 871. For a collection of the authorities on the question of separation of jurors see Annotations contained in 34 A.L.R. 1115, 79 A. L.R. 821, 21 A.L.R.2d 1088.
From this background arose the formality of accusation, arraignment with traverse or avoidance, selection and swearing of the petty jury, then the charging of the jury with the deliverance of the prisoner at the bar. Murray v. State, 210 Ala. 603, 98 So. 871; Bell v. State, 44 Ala. [393] 394; Powell v. State, 37 Ala. App. 192, 65 So.2d 718; Epps v. State, 28 Ala. App. 105, 179 So. 395; Lyles v. State, 41 Ala. App. 1, 122 So.2d 724; Artrip v. State, 41 Ala. App. 492, 136 So.2d 574. Our statutory oath or affirmation for petty jurors calls for them to (1) "well and truly try all issues * * * which may be submitted * * * (2) and true verdicts render according to the evidence * * *."
If, in a criminal trial, the jury find and pronounce the guilt of the defendant, and the verdict is set aside on account of some informality or imperfection, the prisoner is not entitled to a discharge, but may be again tried on the same indictment. Waller v. State, 40 Ala. 325; Ex parte Brown, 102 Ala. 179, 15 So. 602; Hall v. State, 12 Ala. App. 42, 67 So. 739; Eddins v. Popwell, 250 Ala. 453, 35 So.2d 50. Jeopardy does not attach in a criminal case until the jury has been impaneled, sworn, and the indictment read and defendant entering a plea thereto. Epps v. State, 28 Ala. App. 105, 179 So. 395; Murray v. State, 210 Ala. 603, 98 So. 871; Prince v. State, 140 Ala. 158, 164, 37 So. 171, 172; Scott v. State, 110 Ala. 48, 20 So. 468; Bell v. State, 44 Ala. 393, 394. PRICE, Judge.
Holloway v. State, 156 Fla. 135, 22 So.2d 644. It is generally held in other jurisdictions (absent statutory authority) that the same discretion exists where a prospective jury is permitted to separate prior to the time it has been sworn to try the cause. See Epps v. State, 28 Ala. App. 105, 179 So. 395; People v. Schanda, 352 Ill. 36, 185 N.E. 183, Riddle v. State, Okla. Cr.App., 223 P.2d 379. Under the circumstances of this case it was unquestionably within the power of the court, and perhaps the better practice, to admonish the prospective jurors as the defense requested. However, the admonition called for under F.S. ยง 918.06, F.S.A., is mandatory only in its application to the jurors finally sworn to try the issues.
Whether separation of the jury during the trial results in injury is primarily a question for the trial judge, and every presumption will be indulged in favor of his findings. Williams v. State, 26 Ala. App. 531, 163 So. 663; Nabors v. State, 120 Ala. 323, 25 So. 529; Grizzard v. State, 16 Ala. App. 505, 79 So. 266; Epps v. State, 28 Ala. App. 105, 179 So. 395. The trial court's actions are presumptively correct in absence of a showing to the contrary. Ballard v. State, 236 Ala. 541, 184 So. 260. On appeal from a conviction of murder in the second degree, questions relative to first degree murder will not be considered. Davis v. State, 21 Ala. App. 474, 109 So. 385. Where evidence is in conflict, the appellate court could not hold the trial judge in error in refusing new trial.
In a criminal case the recitals in the judgment entry are conclusive and exclude all presumption of joinder of issue on any other plea. Thomas v. State, supra; Presley v. State, 26 Ala. App. 280, 158 So. 765. Where there is a difference in the recitals in the record proper and the bill of exceptions, the recitals in the record proper must control. Thomas v. State, 58 Fla. 120, 50 So. 954; McDaniel v. State, 10 Ala. App. 79, 64 So. 641; Melton v. State, 23 Ala. App. 90, 121 So. 443; Ferguson v. State, 24 Ala. App. 491, 137 So. 315; Presley v. State, supra; Epps v. State, 28 Ala. App. 105, 179 So. 395. BRICKEN, Presiding Judge.