Page:Cole v. State (211 Ark. 836).pdf/2

ARK.] For reversal it is argued (a) that evidence does not support the verdicts; (b) Act 193 cannot be construed toapply to facts presented; (c) Section 2 of Act 193 is unconstitutional and its validity has not been determined; and (d) the defendants' plea of former jeopardy should have been sustained.

First.—(d)—This contention cannot be maintained. The defendants were convicted when tried on the indictment—an indictment they alleged was void because of alleged irregularities in the selection of grand jurors. When the causes were remanded the Prosecuting Attorney elected to proceed by information. In so doing he disregarded the indictment: a result the defendants had sought. The principles announced in State of Arkansas v. Clark, 32 Ark. 231, are in point. See also Johnson v. The State, 29 Ark. 31, 21 Am. Rep. 154. It is cited in the Clark case. Fox v. The State, 50 Ark. 528, 8 S. W. 836, was an appeal from a conviction under an indictmentcharging false imprisonment. Fox had formerly been indicted for robbery, and acquitted. This Court held that in the circumstances of that case false imprisonment was an ingredient of the robbery charge for which Fox had stood trial and as to which he had been found not guilty; hence there could be but one prosecution. Lee v. The State, 26 Ark. 200, 7 Am. Rep. 611, is not contrary. That case was decided when the Constitution of 1868 was in effect, its provision being that “ no person, after having been once acquitted by a jury, forthe same offense shall be again put in jeopardy of life or liberty.” The Constitution of 1874 is: “ and no person, for the same offense, shall be twice put in jeopardy of life or liberty.” Effect of the case is that dismissal of a valid indictment against one who insists upon trial before a jury then sworn amounted to an acquittal, and a plea of former jeopardy was good against a second indictment for the same offense.

Second.—(c)—We have heretofore construed applicable provisions or sections of Act 193 as cases involving the legislation were presented. In Smith and Brown v. State, 207 Ark. 104, 179 S. W. 2d 185, it was said that the