Ex parte Glenn

• Citation: 111 F. 257
• Parties: Ex parte GLENN.
• Decision Date: 08 October 1901
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

111 F. 257

Ex parte GLENN.

United States Circuit Court, N.D. West Virginia.

October 8, 1901

Caldwell & Watson, John F. Laird, and J. G. McCluer, for petitioner.

Hunter H. Moss, Jr., for the State.

JACKSON District Judge.

Ellis Glenn, claiming to be a citizen of the state of Illinois, has presented her application to the judge of this court, praying for a writ of habeas corpus, and that she may be discharged from custody and from further trial in the criminal court of Wood county, in this state. Her petition admits upon the face of it that she stands indicted in the criminal court of Wood county for forgery, and that at the May term of the criminal court of Wood county, before the judge of that court, a jury was impaneled to try and true deliverance make between the petitioner and the state of West Virginia upon said indictment and after three weeks of trial, on the 30th day of July, 1901, the jury before which she was tried was illegally discharged by the judge of the criminal court of Wood county. The petitioner alleges that the jury was not discharged with her consent, nor because of the sickness of the jury not the expiration of the term, or for any other necessary cause, as shown by the records of the said criminal court in the order discharging said jury, but was the voluntary act upon the part of the said criminal court, without consulting the defendant, as the records heretofore referred to show; that the order discharging the said jury does not show that the jury could not agree upon a verdict but that they were not able to agree, nor does the order of the court show any imperious necessity, or in fact any actual necessity, for discharging the jury. After the discharge of the jury she was required to enter into a recognizance in the sum of $1,000 for her appearance at the next term of the court (the September term, 1901, of the said criminal court of Wood county), to be retired on said indictment, or to be confined in the county jail. Upon this petition the judge of this court made a rule requiring the sheriff of Wood county to produce the petitioner, the prisoner, upon the 7th day of October, 1901, before the judge at chambers, to show cause why a writ of habeas corpus should not issue, and the prisoner be discharged from custody. The sheriff appeared and produced the body of the petitioner, and stated that she was in his custody, charged with forgery in the criminal court of Wood county, as shown by a certified copy of the indictment pending against her. Accompanying this return was the answer of Hunter H. Moss, Jr., prosecuting attorney of Wood county denying all the allegations of the petition of the prisoner and insisting that the prisoner should not be discharged from the custody of the criminal court for the reasons assigned in the petition, and insisting, under the statute of West Virginia, that she is not entitled to be discharged because of the inability of the jury to agree in their verdict. Upon the part of the petitioner it is insisted that another and second trial of the case is in violation of the constitution of the United States, which says 'that no person shall be subject for the same offense to be put twice in jeopardy of life or limb. ' Amend. 5. This provision of the constitution has been the subject of a great deal of judicial discussion as to what is meant by the word 'jeopardy.' If we look to the ordinary definition of the word, we find that it means exposure to or danger of death, loss, or injury, danger; hazard; peril. It is a maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offense. 4 Bl.Comm.c. 26, p. 335. It is but reasonable to suppose that, when the framers of the fifth amendment to the constitution provided 'that no person shall be subject for the same offense to be put twice in jeopardy of life or limb,' they had in view what is regarded as the universal maxim of the common law. It has been well remarked that when a person is placed on trial upon a valid indictment, before a competent court and jury duly sworn, he is put in jeopardy and in such cases the discharge of a jury duly sworn without a verdict, unless by consent of the accused entered of record, or from some unavoidable necessity, must necessarily result in the acquittal of the prisoner. But in this case we find, as is disclosed by the record of the proceedings of the criminal court of Wood county, that there was no cause whatever assigned for the discharge of the jury; nor does it appear upon the face of the record that the prisoner consented to the discharge. It is a well-settled principle of law that a prisoner cannot waive any constitutional rights. I have not the time at my disposal, nor the inclination, to hunt up and authorities upon this question, but will content myself to cite the cases of Prine v. Com., 18 Pa. 103; Cancemi v. People, 18 N.Y. 129; Burley v. State, 1 Neb. 385. In the case of Spurgeon v. Com., that court held 'that whatever is essential must affirmatively appear of record, and, where a waiver by the defendant leaves the record destitute of an essential part, he may afterwards take advantage of the defect, notwithstanding the waiver.' 86 V. 652, 10 S.E. 979.

It is contended that, the prisoner in this case not objecting to the discharge of the jury, her silence was a waiver upon her part of the action of the court in discharging it. I do not think so. It is a well-settled principle of law that a prisoner may stand mute. It is for the state to make out its case against the prisoner, and the prisoner is not compelled to do anything that will aid the state in its prosecution. In this case at the time the jury was discharged the prisoner merely stood mute, but the counsel for the prisoner after the jury had been discharged moved the court at a subsequent term to discharge the prisoner from custody for the reason that she had once been placed in jeopardy for said alleged offense, and that the court overruled the motion and required her to answer at a future day of the term. In the case of State v. Hudkins, 35 W.Va. 250, 13 S.E. 367, the court said 'that a waiver by a prisoner in a felony case would have to appear clearly and affirmatively by the record,' and cited the case of Younger v. State, 2 W.Va. 579, 98 Am.Dec. 791, in which the court so held. In the case of Gruber v. State, 3 W.Va. 703, the court held that, where the discharge of a jury was contrary to law the accused could not be tried before another jury, but was entitled to a discharge. In the case of Lemons v. State, 4 W.Va. 755, 6 Am.Rep. 293, the court held 'that where a prisoner failed to demur or move to quash or move in arrest of judgment, on an indictment not in the exact language required by the constitution, he cannot be held to have waived his right to make objections to the indictment in the appellate court; the right being a constitutional, and not a personal right. ' In the case of State v. Miller, 6 W.Va. 600, the same principle is affirmed. In the case of State v. Cottrill, 32 W.Va. 162, 6 S.E. 428, it is apparent from the reasoning of the court that in a case upon a trial for felony the defendant could not waive a constitutional right, although it is not expressly decided. And the same doctrine was reaffirmed by the supreme court of West...