155 U.S. 271 (1894), 687, Thompson v. United States

Docket NºNo. 687
Citation155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146
Party NameThompson v. United States
Case DateDecember 03, 1894
CourtUnited States Supreme Court

Page 271

155 U.S. 271 (1894)

15 S.Ct. 73, 39 L.Ed. 146

Thompson

v.

United States

No. 687

United States Supreme Court

December 3, 1894

Submitted October 18, 1894

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE WESTERN DISTRICT OF ARKANSAS

Syllabus

Courts of justice are invested with 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, and to order a trial by another jury, and a defendant is not thereby twice put in jeopardy within the meaning of the Fifth Amendment to the Constitution of the United States.

Sundry errors in the charge of the court below commented on, and Gourko v. United states, 153 U.S. 183 approved and applied to the issues in this case, viz.:

(1) A person who has an angry altercation with another person such as to lead him to believe that he may require the means of self-defense in case of another encounter may be justified in the eye of the law in arming himself for self-defense, and if, on meeting his adversary on a subsequent occasion, he kills him, but not in necessary self-defense, his crime may be that of manslaughter or murder, as the circumstances on the occasion of the killing make it the one or the other.

(2) If, looking alone at those circumstances, his crime be that of manslaughter, it is not converted into murder by reason of his having previously armed himself.

[15 S.Ct. 73] In the District Court of the United States for the Western District of Arkansas, on November 23, 1893, a jury was sworn to try the issue formed between the United States and Thomas Thompson under an indictment wherein said Thompson was charged with the murder of one Charles Hermes, and to which the accused pleaded not guilty.

After the case had been opened by counsel for the government and the defendant, respectively, and after Jacob Hermes, a witness for the government, had been called and examined in chief, the judge stated that it had come to his knowledge that one of the jurors was disqualified to sit on account of having been a member of the grand jury that returned the indictment in the case. The defendant, by his counsel, objected

Page 272

to proceeding further in the trial of the cause with the said juror on account of his incompetency as aforesaid, whereupon the court ordered the discharge of the jury, and that another jury be called, to which action of the court the defendant, by his counsel at the time excepted.

On November 27, 1893, the defendant filed a plea of former jeopardy, and also a motion for a jury from the body of the district, and it appearing from an examination, in the presence of the defendant that a number of the regular panel of jurors were disqualified because of opinions formed after having heard part of the evidence, the court ordered the marshal to summon from the bystanders twenty-eight legal voters of the Western District of Arkansas, to be used as talesmen in making up a jury for the trial of the case. On December 1, a motion was filed on behalf of the defendant to quash that part of the panel of jurors consisting of twenty-eight men summoned from bystanders, which motion was overruled, and the petition of the defendant asking for a jury from the body of the district, drawn in the regular manner from the jury box by the jury commissioners, was refused. The government's attorney then moved that a jury be called for the trial. The defendant objected to the twelve men being called who had been theretofore impaneled for the trial of the cause, which objection the court sustained, and the clerk was ordered to omit in the call the names of said jurors.

Among the jurors called by the clerk were Wilson G. Gray, William M. Perkins, and Isaac B. Sloan, who were members of the regular panel for the present term of the court, and whose names were on the list of jurors served upon defendant at the beginning of the term, and before the first jury in this cause was impaneled, and when the first jury was impaneled, these three jurors were by the defendant peremptorily challenged. Their names were not upon the certified list of jurors last served upon the defendant after the first jury had been discharged. The challenge for cause made by defendant to these three jurors was overruled, whereupon the defendant peremptorily challenged them. The defendant likewise filed a written challenge for cause to the twenty-eight men called

Page 273

as talesmen for the reasons that they did not belong to the regular panel of jurors, that they were not from the body of the district, but were all residents of the City of Fort Smith, in the immediate neighborhood of the place of trial. This challenge was overruled.

The jury was thereupon sworn, and the trial proceeded with, resulting in a verdict, under the instructions of the court, for the government in the issue formed by the plea of former jeopardy, and in a verdict that the defendant was guilty of murder as charged in the indictment.

Motions for a new trial and in arrest of judgment were overruled, and sentence of death was pronounced against the defendant.

Upon errors alleged in the proceedings of the court, and in the charge to the jury, a writ of error was sued out to this Court.

SHIRAS, J., lead opinion

MR. JUSTICE SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the Court.

The record discloses that while the trial was proceeding, a jury having been sworn and a witness examined, the fact that one of the jury was disqualified by having been [15 S.Ct. 74] a member of the grand jury that found the indictment became known to the court. Thereupon the court, without the consent of the defendant and under exception, discharged the jury, and directed that another jury should be called. The defendant, by his counsel, pleaded that he had been once in jeopardy upon and for the same charge and offense for which he now stood charged. The court permitted this plea to be filed, and submitted the question to the jury, with instructions to find the issue in favor of the government. Such a verdict was accordingly rendered, and the cause was then disposed of

Page 274

under the plea of not guilty, and resulted in a verdict of guilty under the indictment.

The defendant now seeks, in one of his assignments of error, the benefit of the constitutional provision that no person shall be subject for the same offense to be twice put in jeopardy of life and limb.

As the matter of the plea puis darrein continuance, setting out the previous discharge of a jury after having been sworn, and the plea of not guilty, were not inconsistent with each other, it accorded with the rules of criminal pleading that they might stand together, though of course it was necessary that the issue under the first plea should be disposed of before the cause was disposed of under the plea of the guilty. Commonwealth v. Merrill, 8 Allen 545; 1 Bishop on Criminal Procedure § 752.

As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing United States v. Perez, 9 Wheat. 579; Simmons v. United States, 142 U.S. 148, and Logan v. United States, 144 U.S. 263. Those cases clearly establish the law of this Court that courts of justice are invested 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, and to order a trial by another jury, and that the defendant is not thereby twice put in jeopardy within the meaning of the Fifth Amendment to the Constitution of the United States.

The evidence in the case substantially disclosed the following facts: the defendant, Thompson, was an Indian boy about seventeen years of age, and lived with Sam Haynes, a Creek Indian, who had a farm near Okmulgee, in the Creek Nation. The deceased, Charles Hermes, lived with his father on land rented from Haynes, and distant about half a mile from the house of the latter. There was testimony tending to show ill feeling on the part of Hermes and his sons towards this Indian boy, and that they had threatened to injure him if he

Page 275

came about where they were. Thompson could not speak or understand the English language, but he had been told by Haynes and another witness that old man Hermes had claimed that he, Thompson, had been abusing and killing his hogs, and that if he "came acting the monkey around him any more, he would chop his head open."

In the afternoon of June 8, 1893, Mrs. Haynes directed the boy to take a bundle to Mrs. Checotale's, who lived two or three miles away. The boy caught a horse, got on it without a saddle, took the bundle that Mrs. Haynes gave him, and went off on his errand. Mrs. Haynes testified that he had no arms of any kind when he left her house, and that he appeared in a good humor with everybody at that time. The road to Checotale's ran by a field where the...

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184 practice notes
  • 907 S.W.2d 835 (Tex.Crim.App. 1995), 1583-92, Brown v. State
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • September 13, 1995
    ...after jeopardy attaches, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); and, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); and where tactical necessity on the battlefield necessitates moving the tribunal, Wade v. Hunter, 336 U.S. 684,......
  • 718 F.2d 1317 (5th Cir. 1983), 82-1136, United States v. Johnson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • October 25, 1983
    ...the law, but not the right to do so. The jury's duty is to follow the law as pronounced by the judge. Sparf v. United States, 156 U.S. 51, 15 S.Ct. 73, 39 L.Ed. 343 (1895). 2 Thus Justice Story wrote in United States v. Battiste, 24 F.Cas. 1042, 1043 Page 1327 (No. 14,545), quoted also in t......
  • 400 U.S. 470 (1971), 19, United States v. Jorn
    • United States
    • Federal Cases United States Supreme Court
    • January 25, 1971
    ...not barred where jury discharged after 40 hours of deliberation for inability to reach a verdict); Thompson v. United States, 155 U.S. 271 (1894) Page 482 not barred where jury discharged because one juror had served on grand jury indicting defendant); Wade v. Hunter, 336 U.S. 684 (1949) (r......
  • Pearson v. Rock, 072415 NYEDC, 12-CV-3505 (NGG) (LB)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • July 24, 2015
    ...142 U.S. 148, 154-55 (1891) (finding manifest necessity where a juror knew the defendant before the trial); Thompson v. United States, 155 U.S. 271, 273-74 (1894) (finding manifest necessity where ajuror was on the grand jury that had indicted the defendant); see also United States v. Rahim......
  • Free signup to view additional results
184 cases
  • 907 S.W.2d 835 (Tex.Crim.App. 1995), 1583-92, Brown v. State
    • United States
    • Texas Court of Appeals of Texas Court of Criminal Appeals of Texas
    • September 13, 1995
    ...after jeopardy attaches, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); and, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); and where tactical necessity on the battlefield necessitates moving the tribunal, Wade v. Hunter, 336 U.S. 684,......
  • 718 F.2d 1317 (5th Cir. 1983), 82-1136, United States v. Johnson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • October 25, 1983
    ...the law, but not the right to do so. The jury's duty is to follow the law as pronounced by the judge. Sparf v. United States, 156 U.S. 51, 15 S.Ct. 73, 39 L.Ed. 343 (1895). 2 Thus Justice Story wrote in United States v. Battiste, 24 F.Cas. 1042, 1043 Page 1327 (No. 14,545), quoted also in t......
  • 400 U.S. 470 (1971), 19, United States v. Jorn
    • United States
    • Federal Cases United States Supreme Court
    • January 25, 1971
    ...not barred where jury discharged after 40 hours of deliberation for inability to reach a verdict); Thompson v. United States, 155 U.S. 271 (1894) Page 482 not barred where jury discharged because one juror had served on grand jury indicting defendant); Wade v. Hunter, 336 U.S. 684 (1949) (r......
  • Pearson v. Rock, 072415 NYEDC, 12-CV-3505 (NGG) (LB)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • July 24, 2015
    ...142 U.S. 148, 154-55 (1891) (finding manifest necessity where a juror knew the defendant before the trial); Thompson v. United States, 155 U.S. 271, 273-74 (1894) (finding manifest necessity where ajuror was on the grand jury that had indicted the defendant); see also United States v. Rahim......
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