MOORE, J.
The
petitioner is now detained by the sheriff of the county of
Wayne, pending an indictment charging him with the murder of
Valmore C. Nichols. The petition filed in this cause for his
discharge shows that said charge is still pending and
undetermined in the recorder's court of the city of
Detroit. Petitioner claims he has once been in jeopardy
within the meaning of the constitution of the state and of
the United States, and cannot again be tried, but is entitled
to his discharge.
After
the jury was obtained and a portion of the witnesses for the
people were sworn, information came to the trial judge in
relation to some of the jurors and the officers having charge
of the jury which led him to make an investigation. In his
return to the writ of certiorari the trial judge returned
that this investigation was made by him with no one present
except the court stenographer and the person he was then
examining. 'The investigation and inquiries so made are
supplemented by my observation of the conduct of juror Henry
G. Poupard in open court in his seat in the jury box during
the progress of this trial, the flagrancy of which led me to
make a statement to him in the presence of all the jurors
herein in the court room upon the adjournment of court at
noon upon Tuesday, the 12th day of November, 1901. The said
investigation and inquiries were made for the purpose of
determining whether or not the jurors herein, or any of them
were, when impaneled herein, unbiased and unprejudiced
jurors, and otherwise qualified to sit herein; and also for
the purpose of determining whether or not, since the
impaneling of the jurors herein, the said jurors, or any of
them, have, by their conduct or statements, so conducted
themselves as to interfere with the due and orderly
administration of justice to that extent where the rights of
the people or the defendant herein were imperiled or
endangered. The further purpose of such investigation and
inquiries was to ascertain whether or not the officers, or
any of them, in charge of the jurors herein had been guilty
of any misconduct, and, if so, whether such misconduct would
in the event of a conviction
herein, be such as to nullify the proceedings had. From such investigation, inquiries, and from the
personal observation of the court, I do specifically find and
determine the facts to be: That juror Henry G. Poupard, upon
his voir dire examination herein, purposely and willfully
concealed a material fact when asked about it. Upon his voir
dire examination said juror Henry G. Poupard stated that he
did not know any member of the family of this defendant
other than Mr. Simon Ascher. His voluntary statement to me
under oath, upon Thursday, the 14th day of November, 1901, is
that while engaged as a saloon keeper in the city of Detroit
he had business dealings with Louis Ascher, the brother of
said defendant, and that said dealings covered a considerable
period of time, and that he now is a debtor of the said Louis
Ascher in a small sum of money as the result of said
dealings. In the light of the subsequent conduct and
statements made by the said juror Henry G. Poupard during the
progress of this trial, as ascertained by me from the said
investigation and inquiries, and from personal observation of
him, I am led to the conclusion, and do conclusively find,
that at the time he was impaneled herein he was not an
impartial and unbiased juror, and I do conclusively find
that, in order to be accepted as a juror herein, he
fraudulently and willfully concealed from the court and
counsel his bias and prejudice, which so existed both at the
time and before he was sworn and impaneled herein as a juror.
I further find and determine that, from the inception of this
trial, the said juror Henry G. Poupard has frequently, by his
statements and by his manner in making such statements,
expressed to his colleagues disbelief in the testimony given
by the witnesses herein; that he has expressed his belief in
the innocence of the said defendant to his fellow jurors;
that he has said, in the presence of some of his fellow
jurors, that the officials were persecuting the defendant
herein, and that the police officers in this case were
endeavoring to procure a conviction of defendant herein,
whether guilty or innocent; that he has repeatedly endeavored
to influence some of his colleagues by criticising,
ridiculing, and belittling the testimony of the witnesses
sworn herein. I further specifically find and determine that
upon the night of Saturday, the 9th day of November, 1901, at
the Hotel Normandie, in this city, the said Henry G. Poupard
was guilty of gross misconduct in purchasing
and furnishing to some of his fellow jurors herein an
excessive quantity of intoxicating liquor, and in then and
there procuring the intoxication of Patrolman Daniel
O'Keefe, who was then in charge of the said jurors. I
further specifically find and determine that upon the night
of Saturday, the 9th day of November, 1901, at said Hotel
Normandie, the said juror, Henry G. Poupard, did hold
communications with Charles Lewis and Edward W. Harmeyer, who
were not jurors herein, without receiving permission from the
court, and that such communications were had in the presence
of no officers in charge of the jurors herein. I find and
determine that at the inception of this case, and before the
taking of testimony had begun, the said juror Henry G.
Poupard was biased and prejudiced against the people, and in
favor of the defendant herein, to such an extent as to
disqualify him serving as a juror herein; that his conduct
and statements following the taking of testimony grew out of
the bias so held by him; and that he has made a studied and
persistent effort to create a like bias in the minds of the
other jurors herein. I find and determine that juror John E.
Sauer, throughout this trial, and from its inception, has
exhibited a strong and studied bias and prejudice; that at no
time since he was impaneled herein has he been an impartial
juror. I further find and determine that he has studiously
shown his bias and prejudice for the purpose of influencing
other jurors herein, and that he has ridiculed and belittled
the testimony of witnesses sworn herein in the presence of
his fellow jurors. I further find and determine that for the
purpose of discrediting the testimony of one of the witnesses
herein the said John E. Sauer willfully misstated the reasons
for the reversal of this case by the supreme court of this
state. I further conclusively find and determine that upon
the night of Saturday, the 9th day of November, 1901, at the
Hotel Normandie, the said John E. Sauer was guilty of gross
misconduct in being a party toward the procurement of the
intoxication of Patrolman Daniel O'Keefe, and that his
misconduct in that regard was of such a character as would,
in the event of the conviction of the defendant herein,
nullify the proceedings here had and require a new trial of
the issue herein involved. I further find and determine that
upon the night of Saturday, the 9th day of November, 1901,
while in charge alone of the jurors herein at the Hotel
Normandie, in this city, Patrolman Daniel
O'Keefe became and was intoxicated, and that his
intoxication incapacitated him from discharging the duty then
and there devolving upon him, and that by reason of such
intoxication unauthorized communication was had by juror
Henry G. Poupard with Charles Lewis and Edward W. Harmeyer,
they not being jurors herein, and that there was then and
there opportunity given the jurors herein for other
unauthorized and improper communications with persons with
whom communication was then and there improper. I further
find and determine that in my opinion the misconduct of the
said officer was of such a character that, in the event of a
conviction of the defendant herein, the facts being disclosed
to the court, a new trial of this cause
would be required. From the foregoing findings of fact I have
concluded that it is within my power, and that it is my
imperative duty, to discharge the jury herein impaneled from
further consideration of this case, and formally do declare
this trial to be a mistrial.'
The
findings of fact were duly entered upon the court journal. In
the presence of counsel for the respondent and the respondent
himself, the court then made an order in which the findings
of fact were recited, and that the trial was a mistrial, and
discharging the jury from further consideration of the case,
and remanding the respondent to the custody of the sheriff
pending a new trial. Counsel for the respondent moved the
court for his discharge, which motion was overruled, and this
proceeding is brought.
It is
claimed the question is one of greater importance than the
personal rights of the respondent, and involves the integrity
of the right of trial by jury. It is said that no person
shall be placed twice in jeopardy for the same offense. Nor
shall he be deprived of life, liberty, or property without
due process of law. Const. U.S. Amend. art. 5. No one will
question this right of a person accused of crime. The trouble
arises in determining when one is placed twice in jeopardy.
It is
claimed the proceedings heretofore had in this case show the
respondent has been placed in jeopardy, and
that he should now be discharged, citing Cooley, Const. Lim.
327; People v. Harding, 53 Mich. 485, 18 N.W. 555,
19 N.W. 155, 51...
