Hoffman v. State

• Decision Date: 23 December 1863
• Parties: THOMAS HOFFMAN v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

20 Md. 425

THOMAS HOFFMAN v. THE STATE OF MARYLAND.

Court of Appeals of Maryland.

December 23, 1863

WRIT OF ERROR to the Criminal Court of Baltimore City:

This appeal is from a decision of the Criminal Court of Baltimore City (STUMP, J.) over-ruling a motion to discharge the appellant on the ground that he had already been once placed in jeopardy for the same offence, and for other reasons filed. The case is fully stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH and COCHRAN, J. D. S. Sweany, for the appellant argued:

1st. That the decision of the Criminal Court for Baltimore City, over-ruling the motion for the discharge of this appellant ought to be reversed for the reasons mentioned in their motion, and this appellant be discharged. Constitution of Maryland, 19 Article of Bill of Rights. Art. 5, amendments to the Constitution of the U. S. Price vs. State, 8 Gill, 313, 314. 1 st Bishop on Criminal Law, 659. Peiffer vs. Commonwealth, 3 Harris Pa. State Rep. 468, 470. Commonwealth vs Clue, 3 Rawle. Rep., 498, 500. Commonwealth vs. Cook, et al., 6 S. & R., 577. State vs. Kreps, 8 Alabama, 956. 1 Devereux's Rep., 491, 494. 2 Devereux's & Battle's N. C., Rep., 162 to 171. Williams vs. Commonwealth, 2 Grattan Va. Rep., 568. Mahala vs. State, 10 Yerger Tenn. Rep., 532.

2d. That the State having full power to secure the attendance of her witnesses by imprisonment in the jail of Baltimore City and otherwise, and the witnesses for the State having answered to their names on the 24th of October 1859, and the jury having been kept together after being sworn and charged, it was the duty of the State's attorney to have had his said witnesses secured so as to be able to have gone on with said trial to its determination by verdict.

3d. That after the jury had been summoned and sworn on the 24th of October 1859, the trial of this appellant was commenced by the State, and the absence of the State's witnesses constituted no legal or justifiable cause for the discharge of said jury without their finding a verdict.

4th. That if it was the intention of the State's attorney to try this appellant, and the jury was sworn on the 24th of October 1859, for that purpose, and if the State's attorney found any of the State's witnesses absent on the 25th of October 1859, it was his duty to have waited, and to have used the power placed in his hands to have had said State's witnesses brought into Court, and the Court erred in discharging said jury without their finding a verdict.

5th. That inasmuch as the only two counts to be found in the indictment, charge the appellant with murder in the first degree, and it contains no counts for murder in the second degree, nor manslaughter, the appellant will contend that the verdict of the jury in the above cause was erroneous and illegal, because the jurors " upon their oath do say, that the said Thomas Hoffman is guilty of the said felony and murder above charged and imposed upon him, and that the said felony and murder, is murder of the second degree." And this appellant ought to be discharged.

6th. That the State's attorney having commenced the trial of said cause on the 24th and 25th days of October 1859, and the jury having been sworn and charged, it was incompetent for the said Court to discharge said jury without taking the verdict of said jury, and when the State's attorney refused or failed to produce evidence on the behalf of the State, it was the duty of the Court to have instructed the jury to find a verdict of " not guilty," for the want of evidence. And the plaintiff in error ought to be discharged.

A. Stirling, Jr., and N. Brewer, for the State:

1. While the general principle may be admitted to be, that a jury must be kept together from the time they are charged with the prisoner until they deliver their verdict, unless the prisoner consents to their discharge; yet, it is equally clear, that the rule is not inflexible, that it is subject to many exceptions, and that those exceptions depend on the necessities of each case and the requirements of practical justice.

In maintaining these positions the principal enquiries are: 1st. What is meant by the 5th amendment to the Constitution of the United States, " Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb? " 2nd. When, or in what stage of the trial, can a party be said to be jeopardy? These questions are inseparably connected, and both of them arise in most of the cases cited on both sides. We will therefore consider them together.

The principle that a man cannot be twice put in jeopardy, & c., which the appellant's counsel classes among the " inestimable rights guaranteed by the Constitutions of the United States and State of Maryland," is in fact as old as the common law itself, and had grown to be a maxim of the law long before those Constitutions came into existence, and has acquired no additional force as a settled principle of criminal law from the fact of their incorporation into our organic law. It will be found, indeed, that the English Courts have been much more uniform and consistent in adhering to the principle than our own.

Some of the American cases maintain that a prisoner is actually in jeopardy from the moment he is put on trial under a sufficient indictment and a jury is empannelled to try his case; and others are to the effect that he is neither actually nor technically in jeopardy, until after verdict found and he is in a position to plead to a subsequent indictment " autre fois acquit, " or " autre fois convict. " See Wh. Am. Cr. Law, 147, note. We hold that the latter is the true doctrine. It is the doctrine of the English Courts to whom we are indebted for the principle.

The authority of 1 Bishop's Crim. Law, 659, relied on by the appellant's counsel, and all the American cases cited to sustain it, are based on a dictum of Lord Coke. Chancellor Kent in the case of The People vs. Olcott, 2 Johns. Ca., 301, shows very conclusively that Coke is not sustained by the case cited by him; and furthermore, that the very case has been expressly over-ruled and a contrary position maintained by a host of eminent English judges. The American cases which we cite, show that Kent is sustained by the Circuit Courts of the United States, speaking through such men as Story, McLean and Washington, in their respective Circuits; and lastly, by the Supreme Court of the United States itself. The People vs. Olcolt, 2 Johns. Ca., 301. U. S. vs. Josef. Perez, 9 Wheat., 579. U. S. vs. Shoemaker, 2 McL., 114. Commonwealth vs. Olds, 5 Little, 137. U. S. vs. Gibert, 2 Sumner, 19. U. S. vs. Cooledge, 2 Gallison, 364. Commonwealth vs. Roby, 12 Pick., 496. State vs. Hall, 4 Halst., 256. U. S. vs. Haskell & Francois, 4 Wash. C. C. Rep., 402. People vs. Green, 13 Wend., 55. People vs. Goodwin, 18 Johns., 200. State vs. Woodruff, 2 Day, 504. Ned vs. State, 7 Porter, 188. 2 Arch. Crim. Law, 594 to 598. Commonwealth vs. Fells, 9 Leigh, 613. 36 Miss., 531. McCauley vs. State, 24 Ala., 135. State vs. M'Lemore, 2 Hill's S. C. R., 480. Murphy vs. People, 2 Cowen, 820. Com. vs. Bowden, 9 Mass., 494. Kinlock's Case, Foster, 22 to 40.

2. That, the rule not being inflexible must depend on the circumstances of each case, and the discharge of a jury is a matter in the sound discretion of the judge, in each case, and the prisoner must show of record an abuse of discretion. Same cases above cited, and 2 Hales P. C., 295. 2 Graham & Waterman on New Trials, 85, note (1.)

3. That where the judge acts within the scope of his discretion, the exercise of the discretion is not the subject of review by the appellate Court, and that the presumption is that he so acted.

4. That in this case the judge acted within the scope of his discretionary power, and that the absence of witnesses under the circumstances disclosed by the record is a cause for the discharge of a jury.

5. In answer to the point made by the plaintiff in error as to the form of the verdict, the State says the indictment is for murder, and that the degree is properly found by the jury, and the plaintiff's ideas about " counts for murder in the second degree and manslaughter" are erroneous, and that the indictment, verdict and judgment are in express conformity to the precedents and to the decisions of the Court of Appeals. Weighorst vs. State, 7 Md. Rep., 450. Manly vs. State, Id., 135. State vs. Flannigan, 6 Id., 167.

OPINION

BOWIE, C. J.

The plaintiff in error being indicted for murder, jointly with one Robert Miller, by the grand jurors of the State of Maryland, for the City of Baltimore, and being arraigned, severed in his defence, and pleaded not guilty. On the 25th of October 1859, a jury was empannelled and sworn. The State's witnesses being called did not answer; attachments were issued and the Court was adjourned to the 26th of October 1859. The attachments being returned non est, the following proceedings were entered of record: " And afterwards, to wit: on the said 26th day of October, in the year 1859, because it appears to the said Court here, that after the said jury had been sworn, and the above indictment had been read to them, and they had been charged in the usual way by the clerk of the Court here, several witnesses for the State who had been in attendance up to that period, had been discovered to be absent, and that after adjournment to the next day, the said witnesses were still absent, which said witnesses had been duly summoned and put under security for their presence in Court upon the trial of the case, and attachments against them having been issued and returned ‘ non est, ’ no statement having been made or evidence offered to the jury in the said case,...