O'Brian v. Commonwealth

• Decision Date: 15 February 1869
• Citation: 69 Ky. 563
• Parties: O'Brian v. Commonwealth.
• Court: Kentucky Court of Appeals

69 Ky. 563

O'Brian v. Commonwealth.

Court of Appeals of Kentucky.

February 15, 1869.

APPEAL FROM HICKMAN CIRCUIT COURT.

WILLIAM LINDSAY, E. I. BULLOCK, For Appellant,

JOHN RODMAN, Attorney-General, For Commonwealth,

JUDGE PETERS DELIVERED THE OPINION OF THE COURT.

Morty O'Brian, having been tried and convicted in the Hickman Circuit Court for the murder of Timothy Hogan, and his motion for a new trial having been overruled, has appealed to this court, asking a reversal of the judgment.

At the trial term, after a jury had been selected and sworn, and Dr. Jackson, the first witness introduced, had closed his evidence, Mr. Spillman, one of the jurors, announced to the court that he then recollected, after hearing the testimony of Dr. Jackson, that he was a member of the grand jury that found the indictment against the prisoner. Thereupon the court sua sponte ordered that Spillman should be discharged from the jury and another juror substituted in his place, to which orders and rulings of the court appellant objected and excepted, nor did the attorney for the commonwealth object to the juror. Four persons were then summoned and presented, all of whom were peremptorily challenged by appellant. Mr. Nance was then offered, and being unwilling to be tried by him appellant claimed the right to challenge him peremptorily to which appellee objected because, in the formation of the jury of which Spillman was a member, appellant had peremptorily challenged sixteen, which, added to the four subsequently made, exhausted his privilege. The objection was sustained by the court below, Nance impaneled and sworn as a juror, with the eleven previously selected, who were again sworn; to all which exceptions were in due time properly taken by appellant, and by this jury thus formed he was tried and found guilty.

The first question presented on the record is, had the court of its own will the power to discharge the juror, when the objection to him was waived, after the fact was disclosed that he was a member of the grand jury which found the indictment, against the consent of appellant?

By section 211, Civil Code, a challenge is allowed to jurors for implied bias, and having served on the grand jury which found the indictment is named as constituting an implied bias for which a challenge may be taken. But this right may be waived by the defendant, and if he had full knowledge of the fact when the juror was presented, and failed then to make the objection, his failure would constitute a waiver of the right, and a verdict afterward could not be set aside on that account.

As the fact was not known to the defendant until after the jury was sworn and the trial commenced, he would then have had the right to object to proceeding with the trial, while the commonwealth would have had no such right; or the defendant might have waived his right, as he could have done when the juror was first presented, if he had known the fact; and having waived the objection, he had a right to demand that the trial should progress, and of this right he could not be deprived by the mere will of the court. It results therefore that the court below erred in discharging Spillman from the jury without the consent of the defendant; and it is proper to add that his discharge operated as a discharge of the entire jury.

But it is insisted by the able counsel for appellant that the discharge of Spillman from the jury without his consent operated as an acquittal or a bar to the further prosecution of the case; and we are referred to Wharton's American Criminal Law, section 3128, and note d, and other authorities, as fully sustaining the position assumed. The authorities on this question are certainly conflicting, and the section referred to announces the principle, in very explicit and concise terms, that "an arbitrary discharge of the jury without sufficient reason relieves the defendant from a second trial." That announcement is made, as is shown by the note, on the authority of three cases — one from Ohio, of Poage v. State, 3 Ohio Reports, 229; one from New York, Klock v. People, 2 Parker C. R. (N. Y.) 676; Atkins v. State, 16 Arkansas, 568. The ruling of this question in New York has not been uniform. In one case the question was elaborately argued, where, on an indictment for manslaughter, the jury, after hearing the whole case and being unable to agree on a verdict, were discharged by the court without the consent of the prisoner. The defendant insisted that he could not again be put upon his trial because the constitution of the United States declared, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

The court held in that case that the meaning of that clause was that no man shall be tried twice for the same offense; and the true test by which to decide the point whether he was tried or not is by the plea of autrefois acquit or autrefois convict; and that a defendant is not put in jeopardy until the verdict is rendered for or against him, and when for or against him, he can never be called in question again for the same offense. The conclusion of the court was that the discharge of the jury before verdict was no bar to the prosecution. And the law was ruled in the same way in Massachusetts. (Commonwealth v. Bowden, 9 Mass. 194.)

The question came up in 1824 in the Supreme Court of the United States, in United States v. Perez, 9 Wheaton,...