Opinion
No. 49171.
June 4, 1957.
CRIMINAL LAW: Prosecution for murder — jury discharged on failure to agree — trial for manslaughter and included offenses at next term without error. In a prosecution for murder where jury was discharged after failing to agree and defendant was held for trial at the next term, at which time he pleaded former acquittal, but on submission of only manslaughter and included offenses defendant was found guilty of assault to inflict great bodily injury, no error appears and judgment on the verdict is affirmed.
Appeal from Dallas District Court — GEORGE H. SACKETT, Judge.
Hobar E. Newton, of Stuart, for appellant.
Norman A. Erbe, Attorney General, Freeman H. Forrest, Assistant Attorney General, and Ned Willis, County Attorney, for appellee.
By an indictment returned by the grand jury on June 6, 1956, the defendant was charged with the murder on or about May 2, 1956, of Lester Henry Mohr. On September 10, 1956, the case was called for trial to a jury, but being unable to agree, after being out about twenty-three hours, the jury was discharged by Judge S.E. Prall, and defendant held for trial at the next term of court.
The trial was resumed on November 13, 1956, with Judge George H. Sackett presiding, with defendant withdrawing his plea of not guilty, and entering a plea of former acquittal, which the court overruled and directed the county attorney to read the indictment for murder to the jury at the proper time, but to advise the jury that the only crime being submitted for their consideration was manslaughter, and any intended offenses which the trial court might under the record feel were proper to be submitted as included offenses.
On November 16, 1956, the jury returned a verdict finding the defendant guilty of the crime of assault with intent to inflict great bodily injury. After defendant's motions in arrest of judgment and for new trial were overruled, on December 15, 1956, the matter came on for sentencing and the court ordered and adjudged that the defendant be sentenced to a term not exceeding one year at hard labor in the Men's Reformatory at Anamosa, Iowa, and judgment rendered against him for the costs of the action.
Defendant appealed. We find no error in the record, and the judgment is therefore affirmed. — Affirmed.