202 N.Y. 138, People ex rel. Stabile v. Warden of City Prison of City of New York
| Docket Number | . |
| Date | 09 May 1911 |
| Citation | 202 N.Y. 138 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK ex rel. VINCENT J. STABILE, Respondent, v. THE WARDEN OF THE CITY PRISON OF THE CITY OF NEW YORK, Defendant. THE PEOPLE OF THE STATE OF NEW YORK, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
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Argued March 16, 1911.
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COUNSEL
Charles S. Whitman, District Attorney (Robert C. Taylor and Robert S. Johnstone of counsel), for appellant. Subdivision 2 of section 428 of the Code of Civil Procedure, when reasonably construed, gave the trial justice authority to discharge the jury. (United States v. Perez, 9 Wheat. 579; People v. Green, 13 Wend. 57; People v. Adler, 140 N.Y. 331; People v. Sheldon, 156 N.Y. 268; People v. Koerner, 117 A.D. 40; State v. McMillen, 69 Ohio St. 247; United States v. Lee, 123 F. 741; People v. Fitzgerald, 180 N.Y. 269; People v. Rathbun, 21 Wend. 509; Vose v. Cockcroft, 44 N.Y. 415; Pierson v. People, 79 N.Y. 424; Dodge v. Cornelius, 168 N.Y. 242.) Habeas corpus did not lie under the circumstances. (People ex rel. Woolf v. Jacobs, 66 N.Y. 8; People ex rel. Tweed v. Liscomb, 60 N.Y. 559; People ex rel. Scharff v. Warden, 198 N.Y. 110; People ex rel. Herbert v. Hanley, 126 N.Y.S. 840; Church on Habeas Corpus, § 223; Matter of Bogart, 2 Saw. 396; Ex parte Bigelow, 113 U.S. 328.) Habeas corpus will not lie to determine former jeopardy. (Ex parte Bigelow, 113 U.S. 328; Gillespie v. Rump, 163
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Ind. 457; Wright v. State, 5 Ind. 290; Griffin v. State, 5 Tex. App. 457; Ex parte Crofford, 39 Tex. Cr. Rep. 547; Pitner v. State, 44 Tex. 578; People v. Ruloff, 3 Park. Cr. Rep. 126; Matter of Miller, 7 Kan. App. 686; Whitten v. Tomlinson, 160 U.S. 243; Matter of Mahony, 29 Col. 442; Steiner v. Nerton, 6 Wash. 23; Ex parte Maxwell, 11 Nev. 428.) No question of prior jeopardy is involved in this case. To lay a basis for jeopardy there must have been a conviction or an acquittal, and the mere discharge of the jury is not enough. (United States v. Perez, 9 Wheat. 579; Dreyer v. Illinois, 187 U.S. 71; Keerl v. Montana, 213 U.S. 135; People v. Barrett, 1 Johns. 66; People v. Goodwin, 18 Johns. 187; People v. Reagle, 60 Barb. 527; Canter v. People, 5 Abb. Pr. [N. S.] 21; People v. Casborus, 13 Johns. 351; People v. Green, 13 Wend. 57; People v. Olcott, 2 Johns. Cas. 301; People v. Cignarale, 110 N.Y. 23.)
Austen G. Fox, Moses H. Grossman, Leo R. Brilles, Herman Joseph and Augustin Derby for respondent. The discharge of the jury by the trial court, in the absence of a declaration by the jury of inability to agree, was unwarranted. (People ex rel. Jerome v. General Sessions, 185 N.Y. 504; Grant v. People, 4 Park. Cr. Rep. 527; People v. Cage, 48 Cal. 323; People v. Arnett, 61 P. 930; People v. Goodwin, 18 Johns. 187; People v. Olcott, 2 Johns. Cas. 301; People v. Koerner, 117 A.D. 40; State v. Allen, 59 Kan. 758; People v. Glen, 173 N.Y. 395; Wright v. State, 5 Ind. 290.) The improper discharge of a jury is tantamount to an acquittal and discharges the defendant. (Hawes v. State, 7 South. Rep. 310; Bell v. State, 44 Ala. 393; People v. Cage, 48 Cal. 323; McCauley v. State, 26 Ala. 135; Grant v. People, 4 Park. Cr. Rep. 527; State v. Wamire, 16 Ind. 357; State v. Allen, 59 Kan. 758; Wright v. State, 5 Ind. 290; Miller v. State, 8 Ind. 325; State v. Callendine, 8 Iowa, 288.) The defendant having once been placed
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in jeopardy, cannot again be tried for the same offense. (King v. People, 5 Hun, 297; McKenzie v. State, 26 Ark. 334; Whitmore v. State, 43 Ark. 271; O'Brien v. Commonwealth, 72 Ky. 333; State v. Paterno, 43 La. Ann. 514; State v. Sommers, 60 Minn. 90; Helm v. State, 66 Miss. 537; Alexander v. Commonwealth, 105 Penn. St. 1; People v. Cage, 48 Cal. 323; Comm. v. Fitzpatrick, 121 Penn. St. 109.) Habeas corpus was the proper means in this case to test the question. (People v. Smith, 172 N.Y. 210; Matter of Nielsen, 131 U.S. 176; Matter of Spier, 1 Dev. 491; Ex parte Glenn, 111 F. 257; Ex parte Davis, 48 Tex. Cr. Rep. 644; People v. Olcott, 2 Johns. Cas. 300; People ex rel. Perkins v. Moss, 187 N.Y. 410; People ex rel. Tweed v. Liscomb, 60 N.Y. 599; People ex rel. Patrick v. Frost, 133 A.D. 179; People ex rel. Collins v. McLaughlin, 194 N.Y. 556.)
CHASE, J.
In England, during the reign of Edward III, vigorous means were resorted to for the purpose of compelling unanimity among jurymen. Jurors who dissented from the rest were committed to prison, and justices resorted to carrying jurors about with them in carts until they agreed. (Crabb's English Law, 300.) It became the common-law rule that persons serving as jurymen must decide upon a verdict in every case presented to them, and coercion in different forms was permitted and generally exercised. Such rule not only is no longer accepted and enforced, but the rule itself is now only a matter of interest to persons studying the history and development of the law. The old rule is stated by legal writers (Lord Coke, 1 Inst. 227b; 3 Inst. 110) and the records of cases establishing and asserting it have been frequently collated and discussed in more recent opinions. (People v. Olcott, 2 Johnson's Cases, 301; People v. Sheldon, 156 N.Y. 268.) There is no reason that would justify the repetition of such quotations in
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this opinion, and I refer to the old rule simply as a statement preliminary to quoting the statute that now asserts and controls the discretion resting in a trial judge or justice regarding the discharge of a jury, called and sworn in a criminal case, prior to rendering a verdict. Coercion of jurors has never found favor in this state.
By the Revised Statutes of 1829 it was provided: 'Attaints upon untrue verdicts are abolished; and for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding, civil or criminal, except to indictment for corrupt conduct in rendering such verdict, in the cases prescribed by law.' (2 R. S. part 3, ch. 7, title 4, art. 4, sec. 69.)
Early in the last century Mr. Justice KENT in People v. Olcott (supra), referring to the common-law rule and reviewing at length many of the cases that had been decided prior to that time, said: 'The doctrine of compelling a jury to unanimity, by the pains of hunger and fatigue, so that the verdict, in fact, be founded not on temperate discussion, and clear conviction, but on strength of body, is a monstrous doctrine, that does not, as St. Germain evidently hints, stand with conscience, but is altogether repugnant to a sense of humanity and justice. A verdict of acquittal or conviction obtained under such circumstances, can never receive the sanction of public opinion. And the practice of former times of sending the jury in carts from one assize to another, is properly controlled by the improved manners and sentiments of the present day.' (p. 309.)
Growing out of the common-law rule that we have stated, it was, by Lord COKE, asserted that a jury sworn and charged in a criminal case could not be discharged until they had rendered a verdict.
In the case of People v. Olcott (supra) Justice KENT reviews the authorities to sustain the claim that a court has no power to discharge a jury in a criminal case until they have agreed upon a verdict, and concludes that the
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power to discharge a jury in certain cases before they render a verdict exists. In the Olcott case the defendants were indicted for a misdemeanor and Justice KENT left a possible doubt as to the rule stated by him being applicable to capital cases by saying: 'If the question in capital cases be doubtful, there is nothing to render it so in cases of misdemeanor.'(p. 307.) Long before the adoption of our Code of Criminal Procedure in 1881 it became the settled rule in this-state that the discharge of a jury in all cases rests in the sound discretion of the court. (People v. Denton, 2 Johnson's Cases, 275; People v. Olcott, supra; People v. Goodwin, 18 Johnson, 187; People v. Green, 13 Wendell, 55; Grant v. People, 4 Parker's Criminal Reports, 527.)
The right to discharge a jury in all cases was asserted by SPENCER, J., in People v. Goodwin (supra), and he, at the same time, formulated a rule to be followed in the exercise of such discretion. We quote from the opinion in that case: 'Upon full consideration, I am of opinion, that although the power of discharging a jury is a delicate, and highly important trust, yet, that it does exist in cases of extreme and absolute necessity; and that it may be exercised without operating as an acquittal of the defendant; that it extends as well to felonies as misdemeanors; and that it exists, and may discreetly be exercised in cases where the jury, from the length of time they have been considering a cause, and their inability to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion.' (p. 205.)
Under the rule established the safeguard of the public and of persons charged with crime against an improper discharge of a jury rested in the good judgment and integrity of the judges. Prior to the adoption of the Code of Criminal Procedure it is asserted that in one or more cases in this state a jury had been discharged without the exercise of that good judgment which is usually
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manifested in all matters resting in the discretion of the courts. It is also asserted that the criticisms arising therefrom resulted in the insertion in the Code of Criminal Procedure of section 428, which asserts, defines and limits the discretion resting in the courts relating to the discharge of a jury before it has arrived at a verdict. Said section 428 reads as follows: 'When jury to be discharged before agreement.--After the jury have retired to consider of their verdict, they can be discharged before they shall...
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