Kelly Et Al. v. State Indiana

On Petition For Rehearing Appellants, in their brief in support of their petition for rehearing, assert that the original opinion in this case does not state that the trial of this cause had not begun at the time the appellants made their oral motion that they be discharged. They contend that the trial had actually begun at that time. The opinion shows that this motion was made and a hearing requested thereon before the voir dire examination had begun. A trial by jury does not begin until a jury is sworn. Hunnell v. The State (1882), 86 Ind. 431. Our statute provides that the defense of former jeopardy may be shown under the general denial only where the defense is interposed during the trial. § 9-1132, Burns' 1942 Replacement. The state of the proceedings in this matter at the time the oral motion and request were made was such that the issue of former jeopardy could only be raised by a special plea in bar. Mann v. State (1933), 205 Ind. 491, 186 N.E. 283, rehearing denied 187 N.E. 343.