State v. Keerl

MB. JUSTICE MILBUBN

delivered the opinion of the court.

This case is on appeal from a judgment of conviction of man *508 slaughter. The defendant was tried three times. The first trial resulted in conviction of murder in the second degree. The judgment was reversed on appeal (State v. Keerl, 29 Mont. 508, 101 Am. St. Rep. 579, 75 Pac. 362). Upon the second trial the jury disagreed and was discharged. The third trial resulted in the conviction for manslaughter and the judgment from which the appeal was taken.

The alleged crime was committed in Lewis and Clark county. The third trial was had, by change of place of trial, before the district court of the eighth judicial district. Before entering upon the third trial the information was amended in the particulars suggested in the opinion of this, court after the first trial. The second trial was upon information without amendment.

The brief of appellant sets out six specifications of error, only one of which was argued orally, the rest being submitted merely upon the briefs. After considering all, we find that the one argued orally is the only one worthy of consideration and it is the one which will be noticed herein. The specification which we must consider is: “ The court erred in not sustaining the second plea of appellant, that he was once in jeopardy and acquitted through the improper discharge of the jury upon the second trial.”

Upon the second trial of the defendant the jury, after deliberating upon their verdict for about twenty-four hours, returned into court and having been inquired of by the judge, was discharged and the following minute entry .was made by the court: “In this cause the jury returned this day into open court, the defendant being present in person and by counsel; whereupon it satisfactorily appearing to the court that there is a reasonable probability that the jury cannot agree, court ordered the jury discharged from further consideration of this cause. ’ ’

The plea relied upon on the beginning of the third trial is as specified above, the formal plea in writing containing the fol *509 lowing language, speaking of the second trial: “The said jury-retired to deliberate, and having on the fourteenth day of July, 1904, after the expiration of about twenty-four hours after their retirement to deliberate upon their verdict returned into court, they were questioned by the court as to whether they had agreed and having reported to the court as the fact was, that they had not agreed, the said jury were by the said court on the said fourteenth day of July, 1904, without the consent of the defendant and without having arrived at or returned any verdict, discharged, without there existing any necessity for the discharge of the said jury and without there being or existing no reasonable probability that the said jury could or would agree upon a verdict. * * * The said court directed the clerk thereof to enter of record that the court found that there was a reasonable probability that the said jury would not agree and that they were for that reason discharged.”

Article Y of the Amendments to the Constitution of the United State provides: “ * ® * Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. * # * ”

Section 18 of Article III of the Constitution of the state of Montana provides: “ * * * Nor shall any person be twice put in jeopardy for the same offense.”

Our Constitution includes all in the Federal Constitution on the subject, and more, and is not in any wise in contravention thereof. This question has been argued since American courts have been established under our Constitution, and has been considered from every possible standpoint, and the opinions are not consistent or reconcilable. Many of the courts have held that after the jury is sworn in a criminal ease, the defendant is in jeopardy, and that, except in a ease of necessity arising from some act almost amounting to an “act of God,” the jury may not be discharged without such discharge amounting to an acquittal. Other courts have held that the discharge lies in the discretion of the court for reasons sufficiently appearing to it. Others have held that in capital cases the dis *510 charge of the jury, for reasons of accident or otherwise, will not amount to an acquittal. We think that all of these holdings are inconsistent with the idea that the defendant is in such jeopardy as the Constitutions, federal and state, refer to, as soon as the jury is sworn, because if the defendant is in such jeopardy as soon as the jury is sworn, then the death of a juror, or a disagreement of the jury, could not alter the fact. What has happened has happened and cannot be changed without a miracle.

Our legislature in the enactment of the Penal Code has, with abundance of caution, undertaken to pass upon this matter in at least four sections. Section 2124 provides: “If, after the retirement of the jury, one of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged.”

Section 2125 reads: “Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless at the expiration of such time as the court may deem proper, it satisfactorily appears that there is .reasonable probability that the jury cannot agree. ’ ’

Section 2126 provides: “In all eases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried.”

Section 2103 reads as follows: “When the defendant has been convicted or acquitted upon an indictment or information for an offense, consisting of different degrees, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein. ’ ’

The legislative construction of what the Constitution means in regard to twice being put in jeopardy is apparent from a read *511 ing of section 1356 of the Penal Code, to-wit: “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.” This implies a verdict, and is consistent with the views of the supreme court of the United States as it announced them in United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165, respecting a prisoner who was tried for a capital offense, the jury being discharged without agreeing upon a verdict and without the consent of the defendant: ‘ ‘ The prisoner has not been convicted or acquitted, and may again be put upon his defense. ’ ’

We think that the legislature meant by this latter section that a person may not be subjected to a second prosecution if once there has been rendered against him a verdict of conviction or a verdict of acquittal has been returned in his favor. We do not believe that it meant to say that “in case a verdict of conviction or a verdict of acquittal has been rendered, or if the jury has been discharged without rendering any verdict, the defendant in a criminal case shall not be prosecuted again for the same public offense. ’ ’ We do not believe that the legislature meant that the discharge of the jury amounted to an acquittal.

The authorities supporting the view that a disagreement of the jury, coupled with a failure to find a verdict, does not operate to bring the defendant within the provision of the Constitution as to former jeopardy, which view we believe to be also that of the legislature, and which we think to be in accord with our Constitution and that of the United States, are numerous, a few of which we cite: 3 Current Law, p. 984; United States v. Perez, supra; Wharton’s Criminal Practice and Procedure, 8th ed., sec. 490; Moseley v. State, 33 Tex. 671; State v. Walker, 26 Ind. 346; Commonwealth v. Purchase (Mass.), 2 Pick. 521, 13 Am. Dec. 452; 17 Am. & Eng. Ency. of Law, 585, citations, note 1. One most fully expressing our ideas in clear language is that of United States v. Perez, supra. The ease is so similar to the one under consideration that we quote the opinion in full: “The prisoner, Josef Perez, was put upon trial for a capital offense, and the jury, being unable to agree, were discharged by the court *512 from giving any verdict upon the indictment, without the consent of the prisoner, or of the attorney for the United States. The prisoner’s counsel thereupon claimed his discharge as of right, under these circumstances; and this forms the point upon which the judges were divided. The question, therefore, arises, whether the discharge of the jury by the court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offense. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment until such trial can be had. We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American courts;.but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.”

*513 So far as the reasoning is concerned, it does not make any difference, under the broad provision of our Constitution, as to any charge, so it is the same offense, whether the defendant is put upon trial for a capital offense or for murder in the second degree, which is not a capital offense under our law.

In conclusion, we repeat the language of the federal court in United States v. Perez, supra: “We are aware that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of the opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. ’ ’

The entry made by the court in its minutes as to its action in discharging the jury, and the reason therefor, complies with the statute and is sufficient.

The judgment is affirmed.

Affirmed.

Mr. Justice Holloway concurs.