Commonwealth v. McCormick

• Decision Date: 05 January 1881
• Citation: 130 Mass. 61
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. Daniel McCormick & others

130 Mass. 61

Commonwealth v. Daniel McCormick & others

Supreme Court of Massachusetts

January 5, 1881

Argued November 22, 1880

Worcester.

Judgment on the verdict.

F. A Gaskill & B. W. Potter, for the defendants.

G Marston, Attorney General, & F. H. Gillett, Assistant Attorney General, for the Commonwealth.

Colt J. Lord & Soule, JJ., absent.

OPINION

Colt, J.

The defendants were jointly indicted for an assault and battery. They severally pleaded, in substance, that at a previous term of court a jury was empanelled and a trial begun, which, without their consent, was stopped by the court, and the case taken from the jury, because one of the jurors was found to be surety upon a recognizance entered into by one of the defendants in this case. The several pleas of the defendants were overruled on demurrer; and, after a verdict of guilty against all, the case is reported for the consideration of this court. The defendants contend that, upon the facts pleaded, it is apparent that they have been once put in jeopardy for the same offence, and are therefore entitled to be discharged from further prosecution.

When a jury has been sworn to try the issue and the trial has been commenced, the jeopardy to which the defendant is exposed is held to have begun, and the prosecuting officer will not, pending the trial, when a verdict is demanded by the prisoner, be permitted to enter a nolle prosequi for the purpose of subjecting him to another trial for the same cause. Commonwealth v. Scott, 121 Mass. 33. Commonwealth v. Tuck, 20 Pick. 356. Commonwealth v. Kimball, 7 Gray 328. The government chooses its own time, and cannot for its own convenience discontinue the proceedings and still hold the prisoner for trial. The principle is embodied in the common-law maxim that no man is to be brought into jeopardy more than once for the same offence. 4 Bl. Com. 335. It is a rule which has been applied with manifest justice by the courts in this country for the protection of persons charged in prosecutions for either felonies or misdemeanors, and it has been said that its true meaning is, that no man shall be twice tried for the same offence. People v. Goodwin, 18 Johns. 187, 201. United States v. Perez, 9 Wheat. 579.

From the necessity of the case, however, there must be many exceptions to the rule. Thus, it is held not to apply when the trial comes to an end by the sickness or death of a juryman; Rex v. Edwards, 4 Taunt. 309; United States v. Haskell, 4 Wash. C. C. 402; or the illness of the judge; Nugent v. State, 4 Stew. & Port. 72; or the expiration of the term of the court; Newton's case, 13 Q. B. 716, and 3 Cox C. C. 489; or the impossibility of obtaining an agreement of the jury within a reasonable time, or without physical coercion; United States v. Perez, above cited; Commonwealth v. Bowden, 9 Mass. 494; Commonwealth v. Purchase, 2 Pick. 521; Commonwealth v. Sholes, 13 Allen 554; or, in short, whenever the case cannot be proceeded with by reason of some physical or moral necessity arising from no fault or neglect of the government. When such is the case, the trial may be stopped, and the defendant will not be protected from being afterwards tried upon the same indictment.

In United States v. Perez, above cited, where the question was as to the power of the Circuit Court to discharge a jury in a capital case, and then subject the defendant to another trial, the exceptions to the rule are laid down more broadly, and it is said by Mr. Justice Story "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...