Commonwealth v. Olds

• Decision Date: 19 April 1824
• Citation: 15 Ky. 137
• Parties: COMMONWEALTH <I>v.</I> OLDS.
• Court: Kentucky Court of Appeals

Page 137

15 Ky. 137

COMMONWEALTHv.

OLDS.

Court of Appeals of Kentucky.

April 19, 1824.

From the Jessamine County Court.

Sharp, for Commonwealth; Crittenden, for Olds.

OPINION OF THE COURT, BY JUDGE MILLS.—APRIL 19.

THIS is a proceeding in the county court, against the now appellee, for failing to list for taxation, a billiard table; and the case was once before in this court, and reversed at the instance of the now appellee. See 3 Marsh. 465.

On the return of the cause to the court below, the parties resorted to the mode of trial by jury, and after the evidence was given in, similar to what was before used in the case, and the arguments of counsel were progressing or had ended, the bill of exceptions states that the counsel for the Commonwealth moved the court to confine the jury, in their investigation of this cause, to the facts as detailed by the witnesses, and the law growing out of those facts; which motion the court overruled, and permitted matters of law to be argued to the jury, which transpired at the December court next preceding, and then to decide upon the law thereof.

There is some difficulty in understanding from this bill of exceptions, when taken alone, what matters they were, which transpired at the preceding December court, on which the defendant below attempted to rely in argument before the jury. We are, however, told by the bill of exceptions, that they were matters of law, and not fact; and by a bill of exceptions, taken on the part of the appellee himself, we are informed that he moved the court to decide in his favor, and to direct his discharge, because a previous jury had been sworn, and had heard the evidence in the cause, at the preceding December court, and did not agree in their verdict, until the court was about to adjourn, when they discharged the jury and continued the cause, and therefore it was insisted that he could not be again tried. This question the court decided against him; and this appears to be the same subject which the defendant then brought up, as a matter of defense before the jury, by appealing to them, from the decision of the court, which the court permitted, because they say at the bottom of the exceptions of the Commonwealth their opinion was founded on the broad expressions of the law, relative to the jurors being triers of the law as well as the facts. We also discover that the event of discharging a former jury did happen at the preceding December court. There can, therefore, be but little doubt, that this is the matter of law on which the appellee relied before the jury, and from which the court refused to restrain his counsel in the argument of the cause.

The first possible ground which occurs to this court, which can be urged in favor of the doctrine of the appellee, is, that the cause was discontinued by the proceedings at the former December court. It is true, as said in the former opinion, the proceedings in this cause partake of the nature of criminal proceedings, and it is equally true, that formerly, by common law, some process of this nature, and especially proceedings to outlawry, were held to be discontinued, if there was any chasm in the proceedings. This rule, however, was changed by statute in England, and ever since, the courts of that country, as well as the American courts, who took their laws from them, have held that acts which formerly produced such chasms in general process, do not now alter its general course. See 1 Chit. Crim. Law, 297. In accordance with this principle, the legislature of this state has provided, that "if a court shall not sit in any term, or shall not continue to sit the whole term, or before the end of the term shall not have heard and determined all matters ready for their decision, such matters and things depending in court and undetermined, shall stand continued until the next succeeding term. If, from any cause, the court shall not sit on any day in a term, after it shall have been opened, there shall be no discontinuance; but so soon as the cause is removed, the court shall proceed to business, until the end of the term, if the business depending before them be not sooner dispatched." See 1 Dig. L. K. 370.

There could, then, be no pretext for contending that this proceeding was discontinued, because the jury and court had not "determined" it before the end of the term. Besides, the court, on discharging the jury, regularly continued the cause.

The only remaining ground on which the appellee could rely for his discharge, is, that the constitution of this state, in the 12th section of the 10th article, provides, that no person shall, for the same offense, be twice put in jeopardy of his life or limb. Under this clause, it may be contended, that putting the offender on his trial, before a jury, who had the right of pronouncing finally his guilt or innocence, exempts him from being again brought before another, if the former do not agree, and that the Commonwealth has no right to call or swear two or more juries against him. This construction of this...