Ex parte Brown

• Decision Date: 05 May 1934
• Docket Number: 31887.
• Citation: Ex parte Brown, 32 P.2d 507, 139 Kan. 614 (Kan. 1934)
• Parties: Ex parte BROWN. [*]
• Court: Kansas Supreme Court

32 P.2d 507

139 Kan. 614

Ex parte BROWN. ^[*]

No. 31887.

Supreme Court of Kansas

May 5, 1934

Syllabus by the Court.

Where jury arrived at verdict, sealed it in envelope, delivered it to bailiff, and then dispersed, in accordance with judge's instructions on reconvening of court to receive verdict, defendant could waive presence of absent juror, and refusal to receive verdict where defendant did so entitled him to his discharge (Rev. St. 1923, 60--2916, 60--2917 62--1412, 62--1501).

Where jury sealed their verdict and delivered it to bailiff and then dispersed in accordance with court's instructions jury could not on returning into court at later time amend or correct verdict in matter of substance.

Accused is in "jeopardy" when he is placed on trial in court of competent jurisdiction by duly impaneled jury on legally sufficient information on which he has been duly arraigned and to which he has pleaded (Const. Bill of Rights§ 10).

Where information charged statutory rape within two years preceding filing of information, but did not specify any particular date, and state after introducing evidence of many occurrences of sexual intercourse within such time elected to rely on occurrences on one date, accused in subsequent prosecution for same offense against same female on five specific dates held not twice put in "jeopardy" for same offense as to any occurrence other than that of date relied on in first trial (Const. Bill of Rights, § 10).

1.In a criminal trial, where a jury, which has retired to deliberate upon its verdict, is called into court and advised by the court that the judge is going to absent himself and that if the jurors shall agree upon a verdict they shall obtain an envelope from the bailiff and seal the verdict therein and hand it to the bailiff, who shall hand it to the clerk of the court, and then disperse, and the jury thereafter agree upon and seal their verdict and deliver it to the bailiff and then disperse, they cannot, upon returning into court at a later time, amend or correct it in a matter of substance.

2.Where a verdict is arrived at and sealed and delivered under the above circumstances, and upon the reconvening of the court to receive it, one of the jurors is absent, the defendant may waive the presence of the absent juror, and if he does so, the verdict should be received.

3.An accused is in "jeopardy," as that word is used in section 10, Bill of Rights, Kansas Constitution, when he is placed on trial in a court of competent jurisdiction by a duly impaneled jury upon a legally sufficient information on which he has been duly arraigned and to which he has pleaded.

4.An accused was tried on an information containing one count and charging statutory rape within two years preceding the filing of the information but not specifying any particular date.At the trial evidence of many occurrences of sexual intercourse within the period was received, and upon motion of the accused the state elected to rely upon occurrences of March 18, 1932.A verdict of not guilty followed.Thereafter accused was arrested and bound over for trial on a warrant charging the same offense against the same person on five specific dates, all included within the statutory time covered by the first prosecution.

Held that at a trial under the last proceedings, accused will not be "twice put in jeopardy for the same offense"(section 10, Bill of Rights, Kansas Constitution) as to any occurrence other than that of the date relied on (March 18, 1932) in the first trial.

Original habeas corpus proceeding by Richard E. Brown to obtain his release from the custody of the Sheriff of Gove County, who held petitioner by virtue of two commitments.

Writ of habeas corpus allowed as to one commitment and denied as to the other.

SMITH, J., dissenting in part.

C. A. Spencer and J. H. Jenson, both of Oakley, and Guy L. Hursh, of Topeka, for petitioner.

Roland Boynton, Atty. Gen., Everett E. Steerman, Asst. Atty. Gen., and Herbert Hampton, Co. Atty., of Gove (W. L. Sayers, of Hill City, of counsel), for respondent.

THIELE Justice.

This is an original proceeding in habeas corpus wherein petitioner seeks his release from the custody of the sheriff of Gove county, who holds him by virtue of two commitments.

As the commitments grow out of one chain of circumstances, the facts, which are not in dispute, will be chronologically noted, and the contentions of the petitioner and the respondent thereafter considered.

After proper preliminary proceedings, petitioner went on trial by a jury in the district court of Gove county on Monday, November 21, 1933, on an information containing two counts.The first count charged: "that within two years last prior to May 25, 1933, in said County of Gove and State of Kansas, one Richard E. Brown did then and there unlawfully, feloniously and carnally commit the crime of rape," etc.And the second count charged: "That at the County of Gove, in the State of Kansas, within two years next prior to May 25, 1933, the said Richard E. Brown did then and there commit" the crime against nature.Evidence was offered by the state as to numerous acts constituting both crimes charged, and on defendant's motion the state elected to rely for conviction under the first count upon occurrences on or about March 18, 1932, and to rely for conviction under the second count upon occurrences on or about December 1, 1933.The trial continued from Monday throughout the week, and the case went to the jury late Saturday when it retired to consider its verdict.The district judge remained in Gove, and on Sunday morning, November 26, about 8 o'clock a. m., the court called the jury into the courtroom and inquired whether they had agreed on a verdict, and being informed they had not, the judge informed the jury that he was going to his home in Wakeeney and would not return until the next morning; that if they should agree upon a verdict they should obtain an envelope from the bailiff, seal up the verdict in the envelope, and hand it to the bailiff, who was directed to hand it to the clerk, and that the jury might then separate and go home and return to court the next morning.The court reporter was not present, and just what the judge of the court said is determinable only from his statement.In that statement the judge states he has no recollection as to whether on Sunday morning he admonished the jury in case they separated to make no statement as to what kind of verdict they had returned, but he does not believe he had the matter in mind nor did he make such admonition.On the Monday morning, November 27, the court convened with all jurors present except one and reported they had agreed on a verdict about 5 p. m.November 26, and had sealed up their verdict and handed it to the bailiff in accordance with the court's instructions.Some colloquy then occurred between court and counsel, and defendant's counsel stated: "The defendant is willing to waive the absence of the juror who seems to be indisposed."The court replied: "I suppose that could be taken up later.I think now you had better go into the question of the juror's ability to be here."Thereafter testimony was taken with respect to the ability of the absent juror to be present, and further testimony was taken as to just what had transpired on Sunday.The court then continued the matter until the following Friday, stating the continuance was for two reasons; one to see whether the absent juror could be present, the other to give the parties time to investigate the law applicable to the situation.The court then stated to the jury he could not receive a verdict without twelve men being present; that he was going to continue the case and hoped the absent juror would be able to come to court; and: "I am going to excuse you in this case until next Friday morning, but I wouldn't want you to leave because there might be another case to try to the jury, but I want to say that between now and Friday morning it is the desire of the court you shall not reveal what your verdict was, or what verdict has been signed, and not reveal to anybody the state of your deliberation in any way.Just keep that as secret as you possibly can.We are faced here with an extraordinary situation.I might tell you one reason why it is so necessary that you do not reveal the state of your deliberations, is that this verdict is under your control until it is returned into court by the 12 jurymen.That is, any of you can change your mind between now and Friday morning, and that is the reason I do not want you to say a word to anybody about what has been done and do not allow anybody to talk to you about it.Nobody has any business to talk to you about it and if anybody does I would like to have you report it to the court.If Mr. Siemers does not recover so as to be able to come to court I suppose this case will have to be tried over again.Maybe it will anyway under the circumstances that exist here.I think with that statement and with that admonition you may be excused, but do not leave town until we see whether this other case is settled."On Friday all of the jurors were present, and the court directed the foreman as follows: "Mr. Gallagher, I wish you would take the jurymen into the jury room and ascertain whether they are all, at this time, agreed upon a verdict and then bring them back."The jury returned and reported they were not agreed.The court then directed them to retire and consider further.Later they reported they could not agree and were discharged.

As a result of discussion between court and counsel, it was decided to preserve the sealed verdicts and to have them in the hands of the clerk subject to instructions of the trial court or of this court.The cause was continued...