Gillespie v. Rump. Charles W. Miller, Attorney-General, William C. Geake, C. C. Hadley and L. G. Rothschild, for appellee. DOWLING, J.-The appellant James Gillespie, who was in the custody of the appellee Harry Rump, as the sheriff of Ohio county, in this State, and confined in the jail of that county, on June 4, 1904, filed in the office of the clerk of the Ohio Circuit Court his verified petition for a writ of habeas corpus. The petition stated that the appellant was unlawfully restrained of his liberty by the appellee at the jail of said Ohio county; that the pretense for such restraint was that on December 22, 1903, the grand jury of said Ohio county returned to the circuit court of that county, at its December term, 1903, an indictment against the petitioner and against Belle Seward, Carrie Barbour and Myron Barbour, charging them with murder in the first degree, in that they, on the 8th day of December, 1903, with intent to kill and murder one Elizabeth Gillespie, did feloniously, purposely, and with premeditated malice, shoot at and against said Elizabeth Gillespie with a deadly weapon called a shotgun, then and there loaded with gunpowder and leaden balls, and did then and there purposely, feloniously, and with premeditated malice, mortally wound the said Elizabeth Gillespie, of which mortal wound the said Elizabeth Gillespie, on the 10th day of December, 1903, died; that the petitioner was arrested on said charge, and had since been, and then was, confined in said jail; that the said restraint was illegal in this: That on May 2, 1904, at the May term of the Ohio Circuit Court, the petitioner and his codefendants were arraigned in open court, and pleaded "not guilty" to said charge; that the said cause was called for trial, and, on May 10, 1904, a jury of twelve competent jurors (naming them), not related to any of said defendants, being in the jury-box, were duly and legally impaneled, charged, and sworn to try said cause, and a true verdict render according to the law Gillespie v. Rump. and the evidence; that afterward, on May 11, 1904, the State, by its attorneys, moved to set aside such submission on the ground that one of the jurors sworn to try said cause, to wit, one Oscar Jones, when examined in regard to his qualifications as a juror, had stated that he was not related by blood or marriage to any of the defendants in said cause, when, in truth and fact, he was so related, the mother of the said Jones being a first cousin of William Seward, the deceased husband of Belle Seward, one of the said defendants; that none of the attorneys for the State knew of such relationship, and that they had no opportunity to ascertain the existence of the same, the court having adjourned immediately after said juror was sworn to try said cause; that said juror made answer that he was not related to any of the defendants, and thereby misled counsel for the State, who would have challenged him for such cause had said relationship been disclosed; that shortly after the adjournment of the court on May 10, 1904, counsel for State ascertained the fact of such relationship, and on the next day, May 11, 1904, immediately on the reconvening of the court, presented its motion, supported by affidavit, to set aside such submission with a view to the reëxamination of said juror, and to give the State an opportunity to challenge him for the cause above stated; that, in truth and in fact, said juror was not then and there and is not related to the defendant Belle Seward, and that if any relationship ever existed it ceased upon the death of William Seward, the late husband of the said Belle Seward; that the said motion to set aside the submission of said cause to the jury was sustained by the court, to which decision the petitioner and his codefendants excepted; that thereupon the attorneys for the State proceeded to examine the said juror Oscar Jones, who testified that he and the husband of the defendant Belle Seward never considered themselves related, and were not related that he knew of; that the State then per Gillespie v. Rump. emptorily challenged said juror, to which challenge the petitioner and his codefendants each objected, for the reasons that the answers of the said juror showed that he was not related to either of the defendants, and that said submission was set aside only on account of the said sup posed relationship, and not for the purpose of enabling the State to exercise its right peremptorily to challenge said juror; that the objection was overruled by the court, and that the petitioner, and each of his codefendants excepted to such ruling; that the said juror was excused by the court, and that each of the defendants excepted to such decision; that thereupon the said defendants, and each of them, moved the court that they be discharged, for the reason that they had once been in jeopardy for the offense charged in the indictment, and that the impaneling of another jury placed them in jeopardy a second time for the same offense; that the said motion of the defendants was overruled by the court, to which decision each of them excepted; that other persons were summoned and examined touching their competency to sit as jurors in said cause; that thereupon the petitioner and his codefendants, and each of them, filed a special answer in bar, alleging that each of them had been once in jeopardy, and asking to be discharged from arrest in said cause; that the State, by its attorneys, filed a demurrer to said answer for want of sufficient facts, which demurrer was sustained, to which ruling the petitioner and his codefendants excepted; that, thereupon, a second and subsequent jury (naming the members thereof) were impaneled, charged, and sworn to try said cause, who, after hearing the evidence, the argument of counsel, and the charge of the court, retired on May 27, 1904, to deliberate on their verdict; that on Sunday, May 29, 1904, they reported to the court that it was impossible for them to agree upon a verdict, and that the said jury were thereupon discharged by the court from further consideration of said cause. The petition concluded Gillespie v. Rump. with a prayer for a writ of habeas corpus, and for the discharge of the petitioner. The writ was issued and served, and the respondent moved to quash the same for the reasons that the petition did not state facts sufficient to entitle the petitioner to the writ, that the court had jurisdiction of the person of the defendant and of the subject-matter of the action, and that its acts could not be questioned collaterally, and that the rulings of the Ohio Circuit Court could not be reviewed in this proceeding. The objections to the petition were sustained, and the prisoner was remanded to the custody of the sheriff. * * * That statute provides that "No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: Fourth. Upon a warrant issued from the circuit court upon an indictment or information." $1133 Burns 1901, §1119 R. S. 1881 and Horner 1901. The only inquiry necessary or permissible in this case is, was the petitioner in custody upon such a warrant? The jurisdiction of the Ohio Circuit Court over the subject of the action and the person of the petitioner at the time he was brought into court to answer the indictment and a jury was first impaneled to try him and his codefendants upon it is not questioned. That indictment is still pending against the petitioner, and no final judgment has been rendered in the cause. If it should be conceded that the appellant is correct in his contention that he has been once in jeopardy upon the charge contained in the indictment, and that the setting aside of the submission after the jury had been sworn to try the cause, the discharge of one of the jurors upon a peremptory challenge by the State, and the impaneling of a second jury-all without his consent, and over his objections duly presented-was equivalent to an acquittal, still the facts of such jeopardy and Gillespie v. Rump. acquittal would, at most, constitute a defense in bar of the action, and would require proof upon a second trial as any other fact or facts which might entitle the defendant to a verdict of "not guilty." Even if the proceedings of the court in setting aside the submission and discharging the juror were unauthorized and illegal, they were errors only, which, if proved upon a subsequent trial of the cause, might or might not amount to a defense to the action. But these supposed errors did not deprive the court of its jurisdiction over the subject of the action, or the person of the defendant. Certainly, they were not such as to render all further proceedings in the cause void. If, as counsel for appellant insist, their legal effect was to bar a further prosecution of the case under the indictment, the most that could be claimed for them would be that the facts were admissible in evidence under the plea of "not guilty" or a special answer, and were to be considered as other facts constituting the defense. $1832 Burns 1901; Clem v. State (1873), 42 Ind. 420. But if, upon sufficient proof, a former acquittal, or facts tantamount to such acquittal, should be established, and yet the defendant should be found guilty, the question of the sufficiency of such facts to constitute a defense would necessarily be presented to the trial court by a proper motion or objection, and upon final judgment against him the decision could be reviewed by this court on appeal. The fact that the act of the court in discharging a juror and impaneling a second jury, even if erroneous, did not, ipso facto, deprive it of jurisdiction in the cause, and render its subsequent proceedings void, and the further fact that for any supposed error of the court in the proceedings complained of the defendant had a complete and speedy remedy by appeal, conclusively settle this controversy against him. The writ of habeas corpus can not be used as a substitute for the writ of certiorari, the writ of error, or an appeal. In this State, in all cases where the pro |