19 S.W. 656 (Mo. 1892), State v. Ulrich

Citation:19 S.W. 656, 110 Mo. 350
Opinion Judge:Gantt, P. J.
Party Name:The State v. Ulrich, Appellant
Attorney:E. H. Stiles and R. F. Gilkeson for appellant. John M. Wood, Attorney General, for the State.
Case Date:May 31, 1892
Court:Supreme Court of Missouri
 
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Page 656

19 S.W. 656 (Mo. 1892)

110 Mo. 350

The State

v.

Ulrich, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from Jackson Circuit Court. -- Hon. Henry P. White, Judge.

Reversed and remanded.

E. H. Stiles and R. F. Gilkeson for appellant.

(1) The court erred in overruling defendant's plea in bar and motion for discharge on the ground that he had been once in jeopardy. See opinion of Judge Philips, 42 F. 587, granting writ of habeas corpus to defendant from the United States court at Kansas City, on the ground that his restraint was in violation of the fourteenth amendment of the federal constitution, that no state shall deprive any person of life, liberty or property without due process of law. (2) The alleged wife was incompetent as a witness against defendant. 1 Greenleaf on Evidence, secs. 339, 340, 342; Wharton's Criminal Evidence, sec. 394; State v. Berlin, 42 Mo. 572; State v. Gardner, 1 Root (Conn.) 485. (3) The court erred in denying a new trial on the ground of the misconduct of the prosecuting attorney. (4) The court committed error in refusing and giving instructions.

John M. Wood, Attorney General, for the State.

(1) The defendant was not in jeopardy. The necessity which caused the discharge of the jury was something that could not be foreseen at the commencement of the trial, and the jeopardy which was supposed to have attached by impaneling of the jury and taking part of the testimony was by reason thereof shown to have never existed in fact or in contemplation of law. 1 Bishop on Criminal Law, sec. 1032; Hector v. State, 2 Mo. 167; State v. Huting, 21 Mo. 464; State v. Jeffors, 64 Mo. 376; State v. Tatman, 59 Iowa 471; Commonwealth v. McCormick, 130 Mass. 61; Dales v. State, 97 Ind. 555; Mixon v. State, 59 Ala. 129; State v. Emery, 59 Vt. 88; Windsor v. Queen, L. R. 1 Q. B. 289. (2) The authority to discharge a jury from giving a verdict under the circumstances above indicated, or under any other circumstances where "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated," is a matter resting within the sound discretion of the trial court. In the exercise of that discretion the trial court must determine the existence of the necessity for discharging a jury, and, if the act is done, it is to be presumed that the necessity existed, and no other court can revise its decision. United States v. Morris, 1 Curtis, 23; Moseley v. State, 33 Tex. 671; Commonwealth v. Purchase, 2 Pick. 521; State v. Tatman, 59 Iowa 475; State v. Copeland, 65 Mo. 597. (3) No evidence was offered in support of the plea in bar. The record of the proceedings in the cause should have been introduced to show whether in fact the defendant had been in jeopardy, and, if so, that it "was not discharged by operation of the law, or waived by some act of the defendant." The plea does not prove itself. In pleading jeopardy, the burden is upon the defendant to show all the facts which are necessary to entitle him to the benefit of such a plea. Hensley v. State, 107 Ind. 587; Commonwealth v. Daley, 4 Gray, 209; Cooper v. State, 47 Ind. 61; State v. Huting, 21 Mo. 471; State v. Daniel, 94 Mo. 301. (4) Frederica Ulrich, defendant's first and lawful wife, was a competent witness under the statute, if she desired to testify. R. S. 1889, sec. 4218; State v. Newberry, 43 Mo. 429; State v. Sloan, 55 Iowa 217. (5) Admissions of defendant are competent to show both the first and second marriages. The evidence of Frederica Ulrich, that she first discovered that defendant was married a second time from his admissions made before Judge Gibson in a divorce proceeding instituted by him against her, was competent. Tucker v. People, 122 Ill. 583; State v. Hughes, 35 Kan. 626. (6) The remarks of the prosecuting attorney did not constitute reversible error. State v. Stark, 72 Mo. 37; State v. Zumbunson, 86 Mo. 111; State v. Emery, 79 Mo. 461; State v. Walker, 98 Mo. 95; State v. Brooks, 92 Mo. 542; State v. Elvins, 101 Mo. 243; State v. McNamara, 100 Mo. 100; State v. Young, 105 Mo. 634.

OPINION

[110 Mo. 353] Gantt, P. J.

The defendant was indicted in the criminal court of Jackson

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county, at the January term, 1890, for bigamy. He was brought to trial on April 21, 1890. After the jury was impaneled, the cause progressed until noon on the twenty-second day of April.

The record herein then recites the following proceedings: "The judge announced that Judge James M. Sandusky would be present in the afternoon of that day in obedience to a request, that he, Judge Sandusky, should preside in the trial of the cause of the State v. Wheeler, and that no further proceedings would be had in this cause until the case of state against Wheeler was disposed of upon its then setting. The jury was cautioned and dismissed until the Wheeler case should be finished, an explanation being added at the time that possibly the Wheeler case would occupy more time than was then contemplated. If so, the jury were warned that they were to be governed by the caution then given, although it should not be repeated to them. The trial of the Wheeler case was not concluded until April 25, 1890, late in the afternoon. During the continuation of the Wheeler trial the jury were from time to time notified by the judge that they were excused until some specific time in the future. Finally, at the conclusion of the Wheeler trial, and on April 26, 1890, the judge of this court being ill announced that he was not able to preside in court, and the jury was discharged, and the cause set for trial on the twenty-sixth of May, 1890. [110 Mo. 354] Upon this last order being made, the court was, on account of the illness of the judge, adjourned until May 5, 1890. From the impaneling of the jury in this cause until after its discharge on April 26, above mentioned, the defendant was in custody, it being held by the judge that, during the trial of a cause from the impaneling of the jury to the conclusion of the trial, a defendant is not entitled to go at large upon his recognizance, although a continuing one, and in usual statutory form, with approved sureties. During all the time occupied with the trial of the Wheeler case, and when the same was called for trial, the defendant Ulrich was not in court, and was in confinement, and the jury in his cause was not polled or called, nor did the jury at any time receive any caution further than is herein heretofore stated. At the time of the discharge of the jury on April 26, 1890, the defendant Ulrich and the jury in...

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