In re Ascher

Decision Date19 May 1902
Citation90 N.W. 418,130 Mich. 540
CourtMichigan Supreme Court
PartiesIn re ASCHER.

Certiorari to recorder's court of Detroit; Alfred J. Murphy, Judge.

Habeas corpus by Edward Ascher upon the overruling of a motion for discharge after mistrial. Denied.

George F. Monaghan, for petitioner.

Ormond F. Hunt, Pros. Atty., and Henry A. Mandell, Asst. Pros. Atty., for the People.


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...

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