Ex parte Ruthven

• Decision Date: 31 January 1853
• Parties: EX PARTE RUTHVEN.
• Court: Missouri Supreme Court

17 Mo. 541

EX PARTE RUTHVEN.

Supreme Court of Missouri.

January Term, 1853.

1. The fact that the jury, before whom a prisoner has once been tried upon an indictment for a capital offence, was discharged by the court for disagreement, before the end of the term, without his consent and in his absence, will not authorize his release on habeas corpus.

Query. Would it be a bar to a subsequent trial on the same indictment?

This was an application for a habeas corpus, the grounds of which are fully set forth in the opinion of the court.

Gardenhire, (attorney general,) for the State. The discharge of the jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offence. Courts are invested with discretionary authority, in cases of this nature, and have a right to discharge the jury; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges under their oath of office. United States v. Perez, 9 Wheat. 579. Commonwealth v. Purchase, 2 Pick. 520. The People v. Goodwin, 18 J. R. 200. Wyatt v. The State, 1 Blackf. 257.

Parsons and Edwards, for the petitioner. 1. The discharge of the jury by the court, in the absence of the prisoner, and without his consent, was in violation of law; and he was thereby acquitted of the charge for which he was put on trial. Bill of Rights, section 10. Commonwealth v. Cook, 6 S. & R. 577. Haywood's (N. C.) Rep. 276. Ned, (a slave) v. State, 7 Porter's Rep. 187. Commonwealth v. Clew, 3 Rawle, 498. Hawkins' P. C. 619. State v. McKee, 1 Bailey, 651. 2. To put the prisoner again upon his trial on said indictment, would be in violation of section five, article seven of the constitution of the United States. 3. The discharge of the jury, under the circumstances, being an acquittal of the prisoner, he is entitled to be discharged on habeas corpus.

GAMBLE, Judge, delivered the opinion of the court.

The petitioner states, that he was indicted for murder, and confined in the jail of Cole county, upon that indictment; that at the November term of the Circuit Court of that county, in the year 1852, there was a trial of the cause; and that after it had continued for twelve days, the cause was committed to the jury, who retired to consider of their verdict, and after an absence of a few hours returned into court, and announced to the court that they could not agree, and that two of their number were indisposed; that the judge directed the jury to retire for half an hour or an hour, and he would consider whether they should be discharged; that at the expiration of the period fixed, they came into court, and were discharged by the court, without the consent of the prisoner or of his counsel, and in the prisoner's absence, as he had been taken back to jail immediately after the jury had first retired from the bar of the court, and had ever since continued there; that two days after the jury was discharged, his counsel, at the same term of the court, moved the court to discharge him from custody under the indictment, because the court had illegally discharged the jury; but the court overruled the motion, and he has ever since continued to be confined in the jail of Cole county, under said indictment, and the process...