Devlin, Application of, Cr. 3208

• Decision Date: 13 March 1956
• Docket Number: Cr. 3208
• Citation: 139 Cal.App.2d 810,294 P.2d 466
• Court: California Court of Appeals Court of Appeals
• Parties: Application of Edward J. DEVLIN for a Writ of Habeas Corpus.

Page 466

294 P.2d 466

139 Cal.App.2d 810

Application of Edward J. DEVLIN for a Writ of Habeas Corpus.

Cr. 3208.

District Court of Appeal, First District, Division 1, California.

March 13, 1956.

Hearing Denied April 11, 1956.

Alfred J. Hennessy, Julien R. Bauer, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., Jack Berman, Deputy Dist. Atty., San Francisco, for respondents.

PETERS, Presiding Justice.

This is a proceeding in habeas corpus to determine whether petitioner has been once in jeopardy on the charges for which the county seeks to place him on trial.

The petitioner was indicted, charged with the commission of several felonies. He pleaded not guilty. His trial commenced on October 17, 1955. On that date 12 jurors were duly and properly selected, impaneled and sworn. The trial was then continued by consent to October 18, 1955. On that day only 11, jurors appeared. The 12th juror, one Vernon Bartholomew, had been arrested on a felony charge on his way to court. The trial court suggested to counsel that the case, by stipulation, proceed to trial with 11 jurors. To this, petitioner's counsel objected, claiming that Bartholomew, in spite of his arrest, was competent to act as a juror. The trial court by consent continued the case until October 20th. On that day, outside the presence of the other 11 jurors, the trial court interrogated Bartholomew and his counsel as to the reason why Bartholomew had not been present on October 18th. Bartholomew, directly or through his counsel, informed the court that he had been arrested on October 18th on a felony charge and was presently out on bail. Bartholomew then asked permission to make a statement. He stated that because of his arrest 'I do not feel in good conscience, that I can fairly and impartially discharge my duties as a juror. I believe that the events which have occurred may influence my own deliberations and may have a distracting effect upon the deliberation of my fellow jurors. I therefore respectfully request the Court to relieve me of my duties as a juror in connection with this pending case.' Petitioner's counsel resisted the dismissal of the juror, claiming that Bartholomew was fully competent, and that good cause had not been shown for his discharge. The trial court dismissed Bartholomew as a juror, then dismissed the other 11 jurors, and set October 27th as the day petitioner should be tried before a new jury. In the meantime, petitioner's counsel was permitted to enter a plea of once in jeopardy. On October 27th petitioner's counsel moved to dismiss the proceedings on the ground that petitioner had been once in jeopardy. The motion was denied, and petitioner, who was then in jail pending trial, instituted the present proceeding to test the validity of his restraint.

In support of the petition it is argued that after a jury has been impaneled and sworn a juror can only be discharged for 'good cause,' and that the direcumstances here involved, as a matter of law, do not constitute 'good cause.' It is true, of course, that after a jury has been impaneled a juror can be dismissed only for 'good cause,' but it is quite clear that, under the circumstances here involved, the trial court acted well within its discretion in determining that 'good cause' existed.

Even in the absence of statute the trial court possesses the power to dismiss a juror for 'good cause.' The general rule is stated as follows in 38 A.L.R. 706:

'* * * the general modern rule is that the court may discharge a jury without working an acquittal on the defendant, in any case where the ends of justice, under the circumstances, would otherwise be defeated. * * *

'Thus the cases are practically unanimous in holding that it is within the power of the trial court to discharge the jury in a criminal action for any misconduct or disqualification of one or more of its members which is of such a character as to render the discharge necessary in order to prevent the frustration of the ends of justice, and that in such case, the discharge will not support a plea of former jeopardy.'

This general rule is codified in this state.

Section 1123 of the Penal Code provides, in part: 'If before the jury has returned its verdict into court, a juror becomes sick or upon other good cause shown to the court is found to be unable to perform his duty, ...