Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 48 Cal. 323 at 331.
Appeal from the District Court, Seventeenth Judicial District, Los Angeles County.
The defendant appealed.
COUNSEL
Kewen & Howard, for Appellant, argued that the defendant had been in " jeopardy" at the first trial within the meaning of the words as found in article five of the Amendments to the Constitution of the United States, and section eight of article one of the Constitution of this State; and cited Com. v. Cook, 6 Serjt. & R. 595; Bishop's Crim. Law, vol. 1, secs. 856, 858, 859 and 870; People v. Webb, 38 Cal. 477; and that the defendant, having been in jeopardy, was acquitted; and cited State v. Ephraim, 2 Dev. & Bat. 162; State ex rel. Battle, 7 Ala. N. S.; Bishop's Crim. Law, Sec. 873, The Williams Case, 2 Gratt. 567. They also argued that, under section one thousand and sixteen of the Penal Code. The proceedings on the former trial should have been received in evidence under the plea of not guilty.
John L. Love, Attorney-General, for the People, argued that the information given by the Sheriff to the Court, was evidence upon which the Court couldact; as he was an officer of the Court who had charge of the jury, and whose duty it was to ask them if they had agreed on their verdict; and cited Com. v. Olds, 5 Littell, Ky. 137; Dobbins v. The State, 14 Ohio, 493; and Charlotte Winsor v. The Queen, 1 Q. B. 289. He also argued that the Penal Code did not make it the duty of the Court to enter upon its minutes the reasons which controlled it in discharging a jury, and cited Penal Code, Secs. 1139 and 1140.
JUDGES: Niles, J. Wallace, C. J., dissenting.
OPINION
NILES, Judge
The foregoing opinions were delivered at the January term, 1874. A rehearing was granted, and, at the July term, 1874, the following opinion was delivered:
By the Court, Niles, J.:
Upon rehearing, we are satisfied with the views expressed in the former opinion in this case, and the order then made will stand as the judgment of the Court.
DISSENT:
WALLACE
Wallace, C. J., dissenting:
The former trial of this cause took place in June, 1872, and the case was given to the jury on the 30th of July, and on the same day they returned into Court for further instructions, which, being given, they again retired to deliberate upon their verdict; but on the same day re-appeared in Court and stated their inability to agree upon a verdict, but the Court then declined to discharge them. Their deliberations continued during the 31st day of July, and until the first day of August, on which day they again appeared in Court and announced to the Court that they could not agree upon a verdict, and that they saw no chance for an agreement. The Court offered to repeat to them the instructions already given, but they, not desiring to again hear the instructions, were again sent out for further deliberations. On August 2d, it having been reported to the Court that one of the jurors was too ill to serve further, the jury were again brought into Court, when, it appearing that the indisposition of the juror was not of a serious character, the jury were again sent out for further deliberation. At 7:20 p. m. of the same day, the jury, not having returned a verdict, the Court sent the Sheriff to enquire of them if they had yet agreed upon a verdict, and that officer reported to the Court, that the jury " had not and could not agree on a verdict." Upon the receipt of this information the Court was adjourned for the term, which adjournment, of course, operated a discharge of the jury. Undoubtedly it would have been better practice to have called the jury into open Court, and there discharged them in the due and usual form of law; and had that been done, and had the Court entered it of record that they were discharged, because of their inability to agree upon a verdict, I do not understand that, in the view of my associates, such a discharge would have operated as a bar to further proceedings on the indictment by the empaneling of another trial jury, for the jury had deliberated of their verdict from the 30th of July to the 2d of August, inclusive some four days in all. Their discharge under such circumstances, if regularly made and entered of record, could not have been rightfully complained of by the prisoner, nor would it have operated to free him from further prosecution before another jury thereafter.
If, then, upon these facts actually transpiring at the first trial, and which were then entered and now appear of record, the District Court would have been justified in discharging the jury by an order entered in due form, I think that the prisoner cannot allege jeopardy merely because of the irregular manner in which the discharge of the jury was effected in this case. The substance of the whole proceeding is, in short, that it distinctly appeared to the District Court that the jury had not agreed after some four days actual deliberation; and it further appeared that at the time of the discharge of the jury there was no probability of their agreeing; and I am of opinion that an order made under these circumstances, which operated their discharge, must be considered to have been made (even though not so expressed in form) because of their ascertained inability to agree upon a verdict, and that, upon settled principles of law, a discharge of the jury under such circumstances should not operate an acquittal of the prisoner.
I must, therefore, dissent from the opinion of my associates upon this point.