Manning v. State

• Decision Date: 28 March 1927
• Citation: 292 S.W. 451
• Parties: MANNING v. STATE.
• Court: Tennessee Supreme Court

292 S.W. 451

MANNING v. STATE.

Supreme Court of Tennessee.

March 28, 1927.

Error to Circuit Court, Claiborne County; W. H. Buttram, Judge.

Bailey G. Manning was convicted of homicide, and he brings error. Affirmed.

L. D. Smith, of Knoxville, Wm. I. Davis and John P. Davis, both of Tazewell, and J. H. S. Morison, of Cumberland Gap, for Manning.

Judge W. T. Coleman, of Morristown, for the State.

COOK, J.

On the evening of October 20, 1924, Dr. E. J. McDaniel was shot from an automobile and killed while walking on the street between his home and the post office at Tazewell. For the homicide his brother-in-law, Bailey G. Manning, was convicted, and from the judgment of conviction has appealed and assigned error.

Plaintiff in error, hereafter referred to as defendant, was arraigned, and the trial proceeded until all the evidence was introduced. Then Ellis Amos, one of the trial jurors, on the night of April 4th, evaded the custody of the jury officer, and remained at large until arrested at a point 25 miles from the court-house and was brought into court April 7th. After investigation, the trial judge punished the juror for contempt, and dismissed, him from the jury. Whereupon counsel for defendant moved the court to discharge the prisoner because once in jeopardy. The motion was overruled. Whereupon the defendant moved the court to discharge the jury, and enter a mistrial. The motion was overruled; the trial judge saying that the conduct of Amos made it necessary to dismiss him, and, instead of entering a mistrial, the vacancy would be supplied, and that each party would be allowed the unexhausted peremptory challenges in selecting a juror to supply the vacancy.

The defense insisted that the discharge of Amos restored the original challenges, but the court held against this insistence, and defendant exhausted the remaining challenge, after which juror J. H. Lambert was presented, passed by the state, and, after examination by the defendant, was peremptorily challenged. The court denied the right of additional challenges, holding that defendant's challenges must be limited to those unexhausted on the original panel. Mr. Lambert was held competent, ordered to take his place on the jury, and was sworn. The eleven jurors were not resworn. The trial judge announced that the vacancy on the jury had been supplied, and the cause would proceed. The defendant then tendered a formal plea of former jeopardy, which was stricken on motion of the state, and the cause was tried de novo.

The first proposition presented by defendant's assignments of error is that the trial judge (1) should have discharged the jury and entered a mistrial; (2) that, upon the proceeding to supply the vacancy on the jury, defendant should have been allowed all his peremptory challenges which it is insisted were restored upon discharge of the juror for cause; (3) that the discharge of the juror was unauthorized, and that the trial judge should have sustained the plea of former jeopardy presented both before and after the commencement of the trial de novo.

Juror Amos rendered himself unfit to remain on the jury and participate in the trial. Cartwright v. State, 12 Lea, 620. He had been at large in contact with outside influences for three days under circumstances which made it impossible to show that the defendant was not prejudiced by the separation. Hines v. State, 8 Humph. 597; Odle v. State, 6 Bax. 159; Riley v. State, 9 Humph. 649.

Two courses were open for the trial judge to pursue: To reseat the juror, resume the trial, and trail through a formal procedure to a void verdict, or discharge the juror whose misconduct made it apparent that his further participation in the trial would vitiate the verdict. Originally at common law the court could not discharge a juror after he had been sworn in a criminal case. 4 Blk. Comm. 360. Another archaism was that the jury once sworn in a case affecting life or member could not be discharged without giving a verdict. This rule was so strictly adhered to that drastic methods were used to compel a verdict, such as depriving jurors of refreshment, and in winter of warmth, and, when they did not agree upon a verdict before adjournment, they were carried in carts from court to court until they made deliverance.

In Berry v. Wallin, 1 Overt. 241, our court naïvely suggested the impracticability of carting jurors around with the judge on frontier circuit, and refused to follow the common-law practice, and held that the adjournment of the term without a verdict resulted in a mistrial. Rules like these thread back to ancient customs, the reason for which has been forgotten, and are abandoned, and now the trial court may, for legal cause, discharge the jury or a single juror after the accused has been put upon trial. State v. Curtis, 5 Humph. 601; Snowden v. State, 7 Bax. 484; Green v. State, 147 Tenn. 299, 247 S. W. 84, 28 A. L. R. 842.

In 16 R. C. L. p. 319, par. 125, it is said:

"It was at one time thought that, in criminal cases, a juror could not without giving a verdict be withdrawn, or a juror discharged, when sworn. But this rule has given way to the more reasonable one now universally recognized that the court may discharge a juror whenever an absolute or compelling necessity for so doing exists; but, in criminal cases especially, only when such necessity exists."

Left to pursue one of the two courses heretofore referred to the trial judge dismissed the juror, and his action was grounded upon legal necessity, and did not operate to discharge the defendant as having been in former jeopardy. Mahala v. State, 10 Yerg. 532, 31 Am. Dec. 591; State v. Hansford, 76 Kan. 678, 92 P. 551, 14 L. R. A. (N. S.) 548; In re Ascher, 130 Mich. 540, 90 N. W. 418, 57 L. R. A. 807; Yarbrough v. State, 105 Ala. 43, 16 So. 758.

The authorities cited to sustain the assignments of error to the action of the court on defendant's plea of former jeopardy relate to the unauthorized discharge of jurors; as, for instance, for disqualification propter defectum. The right to challenge propter defectum ends when the jurors are accepted and sworn. By waiver the juror becomes a legal juror. Cartwright v. State, 12 Lea, 628; Walker v. State, 118 Tenn. 375, 99 S. W. 366. A juror so accepted, despite the right of challenge for cause, may participate in the trial without vitiating the verdict. The discharge of a juror for cause propter defectum after sworn is the illegal discharge of a juror; it does not spring from necessity; hence cannot work acquittal for former jeopardy. Not so, however, when the juror is discharged for sickness or other legal cause. 12 Enc. Pl. & Pr. 647; Boyd v. State, 14 Lea, 167; State v. Scarborough, 2 S. C. 439; State v. Hall, 9 N. J. Law, 256; State v. Allen, 46 Conn. 535; State v. Pierce, 77 Iowa, 245, 42 N. W. 181.

The great weight of authority is that the trial judge may discharge the jury or a single juror after the accused has been put upon his trial when necessity or the ends of public justice require, but that it cannot be done capriciously. When a single juror is discharged because of sickness or other necessity, the authorities vary as to the procedure that must follow. It was once supposed that when a person was put upon trial for a crime before a jury he was entitled to a verdict from that jury, and a discharge without a verdict was equivalent to acquittal. But this rule gave way to the more reasonable rule that a discharge of the jury for manifest necessity resulted only in a mistrial, and that the prisoner could be put to trial before another jury.

The next step toward rationalizing the procedure upon discharge of a juror for sickness or other necessity was to retain the undischarged jurors, and select another to supply the vacancy, and retender the entire list, the eleven and the new juror, to the prisoner, with right to peremptorily challenge them as they came to the book, as if there had been no prior impanelment, and, upon acceptance of the jury, to proceed with the trial de novo. Rex v. Edwards, 3 Campbl. 207; 4 Taunt. 309; Wharton Pl. & Pr. par. 508, note.

This procedure was observed in People v. Stewart, 64 Cal. 660, 28 P. 112, and People v. Zeigler, 135 Cal. 462, 67 P. 754, 56 L. R. A. 882, under a statute that authorized the discharge of a juror followed by trial de novo, and in the absence of statute in West v. State, 42 Fla. 244, 28 So. 430. Our court, in Garner v. State, 5 Yerg. 160, applying a statute similar to the California statute, held that the trial judge could either discharge the panel, or discharge a juror for physical or mental incapacity, supply the vacancy, and proceed de novo, but that the peremptory challenges were restored to the prisoner, confined, however, in their use in the selection of the new jurors, and that none of the retained jurors were subject to challenge.

In State v. Hasledahl, 3 N. D. 36, 53 N. W. 430, 16 R. C. L. 150, under a statute similar to that referred to in People v. Zeigler, and Garner v. State, the court held that the trial judge could supply any vacancy caused by the necessary discharge of a juror, and that the accused could only use the unexhausted challenges, and that none of the original jurors were subject to challenge. In State v. Davis, 31 W. Va. 390, 7 S. E. 24, under a statute that authorizes the substitution of a juror, unable from any cause to perform his duty, the court observed the procedure followed in State v. Hasledahl, and pertinently observed that, if the whole jury could be discharged and another impaneled, why not a single juror, and his place supplied.

The prisoner in this case had his challenges in selecting the original jurors, and the right to his unexhausted challenges on supplying the vacancy. The rule of the common law, derived from the ancient custom, that, when a person is once put on trial before a jury, he is entitled to a verdict from that jury, has been abandoned, as well as the custom that the trial...