O'Brian v. Commonwealth
| Decision Date | 06 March 1872 |
| Citation | 72 Ky. 333 |
| Parties | O'Brian v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HICKMAN CIRCUIT COURT.
E. I. BULLOCK, For Appellant.
JOHN RODMAN, Attorney-General, For Appellee.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
Murty O'Brian was indicted by a grand jury of the county of Hickman, on the 27th of March, 1872, for the murder of Tim Hogan. He appeared in answer to the charge, pleaded not guilty, and also filed a special plea, that of former jeopardy; the trial resulting in a verdict of guilty, and a judgment thereon sentencing him to be hanged. This appeal is from that judgment. The accused complains of many errors committed to his prejudice during the progress of the trial in the court below, the most of which are deemed merely technical, and we will therefore proceed to the consideration of the grave and important question involved in the case. It seems that the accused had been indicted for the same offense by a grand jury of the same county in the year 1868, and upon his appearing to answer the charge pleaded not guilty, and a jury was selected and sworn in accordance with the law, and the accused legally and regularly put upon his trial. Witnesses were introduced on the part of the commonwealth whose testimony conduced to connect the accused with the killing of Hogan, and while a witness was being examined by the prosecution one of the jurors (Spilman) announced from the jury-box that he was a member of the grand jury that had found and returned into court the indictment upon which the prosecution was based; and thereupon the court, of its own motion and against the objections of the accused and his counsel, discharged this juror, and had another summoned in his stead. The trial then progressed, resulting in a verdict of guilty. The case was brought to this court and reversed, and upon its return to the lower court, the indictment having become mutilated, a new indictment was found, the same under which this conviction was had, and to which the special plea was filed, containing in substance the facts above recited. These facts are all made to appear in the present record, the bill of evidence on the former trial forming a part of the bill of evidence in this case. There is no controversy, however, between the attorney for the state and the counsel for the accused as to the existence of the facts constituting the defense relied on.
It is now insisted that the accused had the right to demand that the trial under the indictment found in 1868 should have progressed, and the court had no power, without his consent and against his objection, at its mere will to discharge the jury, thereby preventing them from making a deliverance between him and the commonwealth; and he is for that reason entitled to an acquittal.
An instruction containing, in substance, this view of the case was offered by counsel for the defense and refused by the court, to which exceptions were properly taken, and the question now presented is, should this instruction have been given to the jury? There is much diversity of opinion among judges as to the power of a court at its discretion to discharge a jury, during the progress of the trial, in a criminal case where the punishment is death. The ancient common-law doctrine on this subject was to refuse to discharge the jury in such a case even with the consent of the prisoner; but this doctrine was discarded by many of the earlier English judges as unreasonable, and the jury permitted to be discharged in cases of absolute necessity.
Lord Hale said that if the prisoner after his plea and before trial becomes insane, he shall not be tried; and if after trial he becomes insane, he shall not receive judgment; and in a case where a juror fell down with a fit it was held that the jury was properly discharged. (1 Hale, 34; 2 Hale, 295.)
The discretionary power of courts over juries in capital cases has been greatly enlarged in many of the states of the Union, and in some it is held that while judges must be extremely cautious in interfering with the chances of life in favor of the prisoner, still in the exercise of their discretion they have the right to discharge the jury, and the only security the prisoner has is in the conscientious exercise of this power and the responsibility of the judges under their oaths. That courts have the power to discharge juries in criminal causes where the accused is even charged with a capital offense, and that without the prisoner's consent, is now too well settled to be doubted; but whether the exercise of this power is to be determined at the mere will of the judge, or only in cases of absolute and extreme necessity, is a question in regard to which we find many conflicting authorities.
Section 211 of the Criminal Code provides that a challenge for implied bias may be taken where the juror was a member of the grand jury that found the indictment, but in no wise disqualifies him unless challenged by the parties to the indictment. When the fact is disclosed showing this implied bias, if the accused fails to object or ask a discharge of the jury, it is a waiver of his right, and, as decided by this court in the case of Fitzpatrick against Norris, he can not afterward for this cause avoid the verdict or obtain a new trial. The accused, however, in this case, after having once accepted the juror, was still willing to be tried by him, and protested against the action on the part of the court in discharging him by excepting to the ruling; and the court, disregarding his objections, required the trial to progress after the substitution of another juror.
Section 248 of the Criminal Code provides "that if after retirement one of the jurors becomes so sick as to prevent a continuance of his duty, or other accident or cause occur preventing them being kept together, or if after being kept together such a length of time as the court deems proper they do not agree on a verdict, and it satisfactorily appears that there is no probability they can agree, the court may discharge the jury."
Section 249 provides "that in all cases where a jury is discharged, either in the progress of the trial or after the cause is submitted to them, the same may be again tried at the same or another term of the court."
It could not have been intended by the section supra (248) that the power of the court to discharge a jury in cases of necessity is restricted to the causes enumerated in that section; if so, all other causes arising during the progress of the trial showing a clear and manifest necessity for the discharge of the jury must be disregarded. This section of the Code, in our opinion, was not intended to define all the causes upon the happening of which this power could be exercised, but was only intended as an adoption of the legal rule that a case of actual necessity must exist before a jury can be discharged.
Section 249 was intended to apply to such cases as are mentioned in section 248, and has direct reference to the latter section; but giving to section 249 of the Code its most comprehensive meaning, and placing this right to discharge a jury by its provisions at the sole discretion of the judge, it is still argued that its exercise without any legal necessity is an infringement upon the constitutional rights of the citizen. The accused had the right, under the constitution and laws of the state, to a fair and impartial trial of his case by a jury of twelve men, selected and sworn according to law, and when thus selected and chosen by him it was their province to render and his right to demand a verdict as to his guilt or innocence of the offense charged. The withdrawal of the juror Spilman, against his objection, terminated the legal existence of the jury sworn to try the issue between him and the commonwealth, a jury to whom he had been delivered in charge, and at whose hands he had the legal right to expect a safe deliverance. There was certainly no legal reason or necessity for discharging Spilman from the jury. He was a competent juror, although a member of the grand jury that returned the indictment into court. He had been accepted by both the commonwealth and the accused, and nothing but his death, sickness, or some accident preventing his continuance on duty, authorized the court without the consent of the accused to say that he should no longer constitute one of the panel. What the verdict of the jury might have been with Spilman upon it is left altogether to conjecture; yet the accused was entitled to a verdict from him in conjunction with his fellow-jurors, and the court had no legal power to deprive him of this right. Section 14 of article 13, state constitution, provides "that no person shall for the same offense be twice put in jeopardy of his life or limb."
A similar provision is also made part of the Federal Constitution and that of almost every state in the Union. The right of trial...
To continue reading
Request your trial