Opinion
No. 13878.
December 9, 1959.
Joseph R. Joseph (of Joseph Joseph), James Pearson, Flint, Mich., for appellant.
Perry A. Maynard, Asst. Atty. Gen., and Samuel J. Torina, Sol. Gen., Lansing, Mich., for appellee.
Before MARTIN and WEICK, Circuit Judges, and WILLIAM E. MILLER, District Judge.
This is an appeal from an order of the District Court of the United States for the Eastern District of Michigan denying appellant's petition for a writ of habeas corpus.
Upon consideration of the record, the briefs of the respective parties, and the argument of counsel in open court, we are of the opinion that appellant's constitutional rights were not infringed by the action of the Circuit Court for the County of Genesee, Michigan, in denying appellant's plea of double jeopardy and in requiring him to stand trial upon the charge of murder after a fourteen-member jury in a former trial of appellant had been discharged by the Court and a mistrial declared. This is true for two reasons. First, the record makes it altogether clear that appellant and his attorney acquiesced in, and in substantial effect consented to, the action of the state trial court in discharging the jury; and second, from all of the circumstances established and appearing to the state trial court, it was a proper exercise of his discretion to conclude that appellant could probably not receive a fair and impartial trial before the jury as then constituted and that the jury should therefore be discharged. This action of the trial court was taken to safeguard appellant's rights, and, under the circumstances, the later trial of appellant before the Court upon the same charge did not constitute double jeopardy.
The order of the District Court denying the petition for the writ of habeas corpus is, accordingly, affirmed.