Brown v. People

• Decision Date: 05 December 1955
• Docket Number: No. 17769,17769
• Citation: 132 Colo. 561,291 P.2d 680
• Parties: Marion Harden BROWN, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 680

291 P.2d 680

132 Colo. 561

Marion Harden BROWN, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 17769.

Supreme Court of Colorado, En Banc.

Dec. 5, 1955.

Rehearing Denied Jan. 16, 1956.

Isaac Mellman, Gerald N. Mellman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., for defendant in error.

CLARK, Justice.

This is a habeas corpus proceeding. The petitioner is defendant in a criminal action pending in the district court wherein he is charged in the information with the crime of murder. The cause was once tried resulting in a jury verdict finding the defendant guilty as charged and recommending the death penalty. Upon review by this Court, because of grievous and prejudicial error appearing in the record of the trial proceeding, the judgment was reversed and the case remanded with direction that a new trial be had. Brown v. People, 130 Colo. 77, 273 P.2d 128.

The cause came regularly on for retrial on May 2, 1955. All of that day and until the afternoon of the next day was consumed in the examination and selection of a jury which was accepted by both sides after each had exercised ten peremptory challenges. Thereupon the jury was sworn to try the issues in the case and recess was had until the morning of Wednesday, May 4th. Prior to the hour fixed for convening of Court on that date, the trial judge, having been informed of conduct on the part of the division clerk, which, to the judge, seemed irregular, conducted a personal investigation from which he became convinced beyond all reasonable doubt that his division clerk, at the suggestion of a superior officer in the clerical department at the commencement of the selection of the jury, had willfully and deliberately placed the ticket bearing the name of one of the veniremen on that panel in a position in the jury box where it would not be drawn. Although the venireman was present and available for drawing and service upon said jury, his name, because of the action of the division clerk, as aforesaid, could not have been drawn, was not drawn, and he did not become available for voir dire examination or service, notwithstanding the duty of the clerk to draw from his box the names of prospective jurors at random and without selection.

The trial judge, having established the existence of such irregularity to his complete satisfaction, then called into chambers counsel representing the defendant as well as those from the district attorney's office representing the people, and disclosed to them the situation which he had discovered and investigated. After a full discussion of the matter all counsel announced themselves as willing to waive the irregularity and to proceed with the trial before the jury then impanelled, except that counsel representing the defendant expressed doubt of their legal authority to so waive. The trial judge, also being doubtful of the authority of counsel for defendant to waive under such circumstances, being certain of his facts and deeming the irregularity to be of an important and grave character, proceeded to open court and on his own motion directed a mistrial, discharged the jury and remanded the defendant to the custody of the sheriff.

Shortly after the occurrence of the events above referred to, defendant Brown, upon presentation of petition to the district court, procured a writ of habeas corpus returnable upon the 16th day of May, 1955. By his petition defendant prayed for his discharge because of alleged former jeopardy in that the jury had been selected and sworn for his second trial and that the action of the court in declaring mistrial and discharging the jury was unnecessary and improper. Upon return of the writ, hearing was had on May 31, 1955 before the same judge who had presided in the proceedings first above related.

Following the conclusion of the hearing and presentation of arguments on petition for habeas corpus the trial judge entered extensive findings and judgment, the same being rather in the nature of an opinion, in which he recites all of the circumstances above related; dismissed the writ of habeas corpus, and remanded the petitioner to the custody of the sheriff.

To better understand the seriousness with which the trial judge regarded the problem before him we erfer rather extensively to his findings and opinion, quoting parts and summarizing others. After relating the factual background the trial court said:

'We conceive the sole question to be determined now, under this Writ, to be whether the discharge of the jury under the circumstances above recited was legally justified.'

The court answered its own question affirmatively upon the basis that courts 'have authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of justice would otherwise be defeated.' After a review of the legal history pertaining to the rights of courts to discharge juries, reference was made to an opinion by Mr. Justice Story, United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, and his quotation therefrom is worthy of repetition here:

'We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests in this, as in other uses, upon the responsibility of the judge, under their oaths of office.' (Emphasis supplied by the trial court)

The trial judge then gave his views in manner following:

'It is contemplated by our laws that when a jury panel is assigned to the trial of a cause, the trial jury shall be drawn from that panel. In this case the jury was not selected from the panel, but rather from the panel, less one. That one was not excused thru regular and lawful channels. To all intent and purpose of trial counsel and the Judge, his name was in the box; he was present in the Court Room waiting to be called. By the act of an...