111 F. 257 (N.D.W.Va. 1901), Ex parte Glenn

Citation:111 F. 257
Party Name:Ex parte GLENN.
Case Date:October 08, 1901
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 257

111 F. 257 (N.D.W.Va. 1901)

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,

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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...

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