300 F.2d 137 (5th Cir. 1962), 19033, Downum v. United States

Docket Nº19033.
Citation300 F.2d 137
Party NameRaymond DOWNUM, Appellant, v. UNITED STATES of America, Appellee.
Case DateMarch 09, 1962
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

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300 F.2d 137 (5th Cir. 1962)

Raymond DOWNUM, Appellant,


UNITED STATES of America, Appellee.

No. 19033.

United States Court of Appeals, Fifth Circuit.

March 9, 1962

Page 138

Richard Tinsman, San Antonio, Tex., for appellant.

Russell B. Wine, U.S. Atty., San Antonio, Tex., John W. McDonald, Asst. U.S. Atty., Waco, Tex., for appellee.

Before JONES, BROWN and GEWIN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal brings into consideration the effect of the double jeopardy provision of the Fifth Amendment of the Constitution. 1 Our view of the circumstances of this case is that this constitutional guarantee has not been infringed by Downum's trial and conviction. We therefore affirm.

The facts are simple and undisputed. The problem concerns their legal significance. On April 19, 1961, Downum was arraigned in open court on an indictment of six counts relating to stealing, forging, and passing Government checks, and conspiracy to commit those acts. 18 U.S.C.A. §§ 1708, 495 and 371. Downum entered a plea of not guilty on all counts while his codefendants pleaded guilty.

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This was done prior to the selection or impaneling of the jury.

On April 25, 1961, the case was called for trial. Both sides announced ready and a jury was selected and sworn in the morning. The jury was directed to return in the afternoon after being instructed not to discuss any phase of the case. At 2:00 o'clock that afternoon, the Judge announced from the bench that he had been advised by the prosecutor that since a material witness was not present, the trial could not proceed. 2 Despite objection by Downum, the jury was then called into the courtroom and discharged.

On April 27, 1961, two days later, and over Downum's plea of former jeopardy, a new jury was selected. Downum, convicted on all six counts, was sentenced to eight years on five counts to run concurrently, and five years on the sixth count to run concurrently with the other counts.

Downum now vigorously presses the single point of error that his conviction by the second jury was illegal because he was placed in jeopardy when the first jury was impaneled and sworn, and there was not sufficient cause for its discharge. 3

The Government takes the position that the action of the trial Judge was well within his judicial discretion in the interest of public justice. Further, the impaneling of the first jury did not actually commence the trial in any real sense-- at least not to such an extent as to place the defendant in jeopardy. The Government advances other reasons. The defendant was not put to additional expense, or embarrassment. He was not kept in a continued and prolonged state of anxiety. Nor has he shown himself to have been prejudiced in any way, especially since he has not even claimed that the first jury was any more, or less, favorable than the second jury.

The problem may be illumined, but it is not answered by extremes. Clearly if the jury had not been impaneled, there could be no question of former jeopardy. Just as clearly, if substantial vital evidence had been presented to the first jury there could have been no second trial in the absence of strong and compelling circumstances. Here, the case is somewhere in between: there was a jury impaneled, but there was no evidence offered or heard.

The guiding principles were announced most a century and a half ago in United States v. Perez, 1824, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165. There the jury was unable to agree and the Court discharged the jury and declared a mistrial. In response to certified questions, the Court held that a Judge may discharge a jury within sound discretion without operating as an acquittal when the ends of public justice require it.

A rigid, inflexible rule of law would not work in situations of his kind. All circumstances must be weighed on the delicate scales of justice. Courts are obliged to see that the scales do not become loaded on either side. On the side, individuals must be protected from oppressive and fundamentally unfair governmental actions. On the other side, is the manifest public interest in the protection of society

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by effectuating the policies of the penal laws.

Achieving this balance, it is our conclusion that, whatever may be the reaches or impact of this Amendment in other situations shading off of the precise one here, the fundamental purpose of this guarantee is not lost or diminished here by permitting a trial before a new jury after discharge of the first one. The circumstances do not here tip the scales in favor of the accused. Downum was never formally arraigned in the presence of the first jury. No evidence was presented for or against him. 4 Downum was never put to his defense. What, and all there had been, was the impaneling of the first jury and its discharge for reasons entirely unrelated to the jury or the composition of it.

Of course, there has to be some sound reason for the termination of the current trial proceedings which will invariably result in the discharge of one jury with the expectation that another one will be chosen at the subsequent proceeding. Gori v. United States, 1961, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901. What actually occurred will therefore be of great importance. 5 The reason here was real and substantial. A vital witness was not, and would not be, available for the trial. The protection of double jeopardy is tested against the action taken by the Court. Consequently, it is of...

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