Hilands v. Commonwealth

• Decision Date: 04 January 1884
• Citation: 111 Pa. 1,2 A. 70
• Parties: Hilands v. The Commonwealth
• Court: Pennsylvania Supreme Court

2 A. 70

111 Pa. 1

Hilands v. The Commonwealth

No.

Supreme Court of Pennsylvania

January 4, 1884

Argued October 12, 1885

Error to the Court of Oyer and Terminer, of Mercer County; October and November Term, 1885. No. 89.

James W. Hilands was indicted for the murder of John Rich; a true bill was found by the grand jury. The case was called for trial on the 12th day of March, 1885, and a jury was obtained and sworn on that day; after the empanelling of the jury, it being 10.20 o'clock p. m., the court adjourned until the next day; the prisoner was remanded to jail and the jury was allowed to separate by consent of the defendant and of the Commonwealth. The next day, on the assembling of the court the presiding judge, Mehard, J., being of opinion that the separation of the jury before any steps had been taken in the case after the selection and swearing of the jury, was an irregularity to which the prisoner had no power to consent discharged the jury and ordered another one to be sworn. Counsel for the prisoner at once objected to the selection of a new jury, and pleaded former jeopardy. The court overruled the plea -- exception for defendant (1st assignment of error). The court, then, the defendant having been instructed that he had a right to challenge, ordered the calling of a new jury; the defendant made no challenges, and the clerk proceeded to call a jury until eleven were obtained, when it became necessary to call talesmen. The counsel for defendant filed the following objection: "A jury having been selected and sworn on this case and discharged without the consent of the defendant, the defendant objects to his trial by another jury selected from the same panel.

"And secondly, the defendant objects to his trial by a jury composed in part of the jury that had been formerly sworn and discharged in this case."

This objection the court overruled, and ordered the following entry on the docket:

"And now, March 13th, 1885. This objection having been filed after all the jurors complained of had been sworn, the prisoner not having challenged any of the jurors called on the ground that they or any of them had been sworn on the former jury, and every opportunity having been given to examine the jurors as to their qualifications, the second ground is not sustained.

"As to the other ground, the jury were discharged because a separation had been permitted with the consent of prisoner as appears on record by minutes made by the court. Such discharge was therefore necessary under the law, and as the prisoner consented to the separation he cannot now take advantage of his own act. Therefore, objections not sustained." (2d assignment of error.)

The call of talesmen then proceeded, and a jury having been obtained, it was duly sworn and the trial proceeded; after the evidence had been given the defendant presented, inter alia, the following point:

"1st. That a jury having been regularly empanelled and duly sworn in this case, and afterwards discharged without the consent of the defendant, the defendant's life was in jeopardy and therefore he must be acquitted by the present jury." The court refused this point. (3d assignment of error.)

The jury brought in a verdict of "Guilty of murder in the first degree." The defendant moved an arrest of judgment for the reasons, (1), that the court erred in not sustaining the defendant's objection to the trial before the second jury: (2), that the court erred in not sustaining the first point of the defendant; (3), that the records did not show the presence of the defendant during the trial at any time after the adjournment on March 12th, 1885, and did show his presence in court at the time the verdict was rendered.

The court, on April 13th, 1885, overruled the motion in arrest of judgment, and passed sentence of death upon the prisoner. The defendant took this writ assigning for error, inter alia, the overruling of the plea of former jeopardy, the overruling his objections to the trial before the second jury, the refusal of his first point and the overruling the motion in arrest of judgment.

SYLLABUS

A person is in jeopardy within the meaning of the Fifth Amendment of the Constitution of the United States and of Article 1, § 10, of the constitution of Pennsylvania, when a jury has been empanelled and sworn to try him upon a capital charge.

The discharge of a jury without the prisoner's consent after it has been sworn in a capital case, is allowable only in a case of absolute necessity; if it be made without such necessity, the discharge will operate as an acquittal.

A jury was sworn upon an indictment for murder, and by the consent of the prisoner was allowed to separate over night before the case had been opened to the jury; the next day, the court regarding this as an irregularity which the prisoner's consent could not cure, ordered the discharge of the jury and the empanelling of another; the prisoner objected to the empanelling of the new jury, and pleaded former jeopardy, which plea the court overruled. Held (a) that the plea should have been sustained; (b) that the separation of the jury did not give rise to such an absolute necessity as would justify the discharge, for if the trial had resulted in a conviction of an offence less than capital, the separation would not have been a fatal error.

J. G. White and Stranahan (with them Bowser,) for plaintiff in error. -- As soon as the jury was sworn the prisoner was in jeopardy. The trial begins when the jury is charged with the defendant: Alexander v. Com'th, 15 W. N.C. 149; McFadden v. Com'th, 11 Harris, 12. A juror is charged with a prisoner when he has looked upon him and has taken the oath, for he cannot be withdrawn. Peiffer v. Com'th, 15 Pa. St. 468. Whenever the jury is charged with a prisoner, where the offence is punishable by death and the indictment is not defective, he is in jeopardy of his life: Com'th v. Cook, 6 S. & R. 577; Com'th v. Clue, 3 Rawle, 501; and see Kring v. Missouri, 17 Otto, 221. The discharge of the jury without the consent of the defendant, worked an acquittal, unless such discharge was a case of absolute necessity. See the opinion of Tilghman, C. J., and Duncan, J., in Com'th v. Cook, supra, and of Black, C. J., in McFadden v. Com'th, supra. This is not a case of necessity.

The consent of the prisoner's counsel to the separation of the jury was not a waiver of the prisoner's constitutional rights; he was incapable of giving a consent which would have that effect. Peiffer v. Com'th, supra.

G. E. Patterson, District Attorney, and Cochran, (with them Stewart,) contra. -- The defendant raised no objection to the discharge of the first jury; this was an implied consent, and the consent to the separation was in effect an express consent to the discharge. As the law will not allow the separation of a jury in a capital case, the discharge, after the separation had taken place, became an absolute necessity. The absolute necessity which will justify a discharge is the impossibility of proceeding with the trial with justice to the prisoner or the state. See Duncan, J., in Com'th v. Cook, 6 S. & R. at page 591; and see State v. Wiseman, 68 N.C. 203; Rex v. The Kinlochs, Fost. 16; Reynolds v. State, 3 Kelly, (Ga.) 63; Ned v. The State, 7 Port. 200. As to the objection to the selection of the jury from the second panel, the objection came too late: he had not made any challenge to the array until the panel was entirely exhausted, and he had consented to the sustaining of eleven jurors out of said panel: 1 Chitty Crim. Law (ed. 1832) pp. 544-5.

Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ. Chief Justice Mercur delivered the opinion of the court. Gordon, J., dissents.

OPINION

Mercur, Chief Justice

The main contention in this case arises under the first specification of error.

After a jury had been selected and sworn in the case, and had been discharged without the consent of the defendant, he objected to the selection of another jury, and plead former jeopardy. The court refused to sustain the plea.

Art. V. of the Amendments to the Constitution of the United States, inter alia, declares, "nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb."

Art. I. sec. 10, of the Declaration of Rights in the constitution of Pennsylvania, declares "no person shall for the same offence, be twice put in jeopardy of life or limb."

This declaration of individual protection is not new to the people of this commonwealth. The identical language was in the constitution of 1790. It was retained in the amended one of 1838, and is repeated in the present constitution.

It will be observed that the constitutional prohibition does not declare that a person shall not be twice tried for the same offence which involves his life or limb; but that he shall not be twice put in jeopardy.

At what step in the prosecution is a person put in jeopardy, to which he shall not be subjected the second time for the same offence? Undoubtedly when the trial begins in which he is charged with a capital offence. That begins when the jury is charged with the prisoner. It is so charged as soon as the twelve jurors are duly empanelled and sworn. They are sworn well and truly to try and true deliverance make between the commonwealth and the prisoner whom they have in charge. The trial has then begun. The prisoner stands before them as his judges, with his life in their hands: Commonwealth v. Cook et al., 6 S. & R. 578; Same v. Clue, 3 Rawle, 498; Peiffer v. Commonwealth, 3 Harris, 468; McFadden v. Same, 11 Id. 12; Alexander v. Same, 9 Out. 1.

The jury are not only the judges of the facts in such a case, but also of the law. If they find the prisoner not guilty,...