McCorkle v. State

Decision Date15 May 1860
Citation14 Ind. 31
PartiesMcCorkle v. The State
CourtIndiana Supreme Court

From the Wayne Circuit Court.

The judgment is affirmed with costs.

C. B Smith, W. P. Benton, W. J. Smith, J. B. Julian and M. Wilson for appellant.

J. E McDonald, Attorney General, for the state.


Perkins, J.

James A. McCorkle was indicted in the Wayne Circuit Court for larceny. On being arraigned, he moved to quash the indictment on account of the date at which the offense was laid as having been committed; whereupon the state proposed to return the indictment to the grand jury for correction. To obviate the necessity for such return, the defendant withdrew his motion to quash, and consented to a correction, in open Court, of the mistake in the date, and to an entry of record of a waiver of all objection, and pleaded not guilty to the indictment.

At a subsequent stage of the proceedings, he renewed his motion to quash, on account of such correction in the indictment. The motion was correctly overruled.

The cause was given to the jury impanneled to try it. After they had been out about two days, the Court standing open and unadjourned, the judge informed the counsel, while all parties were in Court waiting upon the action of the jury, that the jury might be discharged without giving a verdict, they not being able to agree, whenever the defendant should consent to such discharge. This was sometime in the day on Sunday. Between seven and eight o'clock in the evening of the same day, the bailiff brought the jury into the court-room, the judge being at the time six miles distant, but the clerk, the counsel and the defendant being personally present, and the jury reporting that they could not agree, the defendant and his counsel consented that they should be discharged without giving a verdict, and they were accordingly discharged, and the discharge entered of record with the consent, pursuant to the previous permission of the Court.

On a subsequent day in the term, the defendant moved to be released from his recognizance and from further prosecution, on the ground that the discharge of the jury, under the circumstances above related, operated as an acquittal and precluded another trial upon the pending indictment; but the motion was overruled.

The law is well settled that the discharge of a jury in possession of a criminal cause, upon a valid indictment, not called for by imperious necessity, and without the consent of the defendant, operates as an acquittal and bars a further trial. Ind. Dig., p. 362, § 12.

Equally well is it established, as a general proposition, that such discharge with the consent of the defendant, is not a bar to another trial for the same offense. This is conceded in the Courts of Pennsylvania, where the most rigid doctrines on this subject are held. In Peiffer v. The Commonwealth, 15 Pa. 468, Chief Justice Gibson draws a distinction between a consent to the separation of the jury during the progress of the trial, and their final discharge without rendering a verdict. He says: "In this case the jury were allowed to separate after they were impaneled and sworn. True, that took place with the prisoner's consent; but there is right reason and sound sense in Chief Justice Abbott's remark in Rex v. Woolf, [1 Chitt. 401], that he ought not to be asked to consent. Who dare refuse to consent when the accommodation of those in whose hands are the issues of his life or death, is involved in the question? He would have to calculate the chances of irritation, from being annoyed on the one hand, or of tampering on the other. The law is undoubtedly settled by precedent, that a prisoner's consent to the discharge of a previous jury, is an answer to a plea of former acquittal, but the instant a jury is discharged, the prisoner's life is no longer in their power; or, if he should be the cause of their being sent back to protracted confinement, the value of a single chance in his wretched condition would disarm their resentment."

But it should be here observed that, in this state, it is the uniform practice to allow the jury in a criminal, as well as in a civil cause, to separate, with the consent of parties, during the progress of the trial. Evans v. The State, 7 Ind. 271.

Conceding, however, that the consent of the defendant will prevent the discharge of the jury from operating as an acquittal the question arises where and how must that consent be given? Counsel say, only in the presence of the Court. In this we cannot concur. It is our unanimous opinion that a discharge in the court-house, in presence of the officers of the Court, the defendant, and his counsel, entered of record by the defendant's consent, in pursuance of the consent of the Court, previously given in session, is such a consent as will prevent the discharge operating as a bar to another trial; and that the record of the discharge, and the manner of it, cannot be contradicted on a subsequent trial.

This is conclusive of the point in the case at bar. But the writer of this opinion, speaking only for himself on this single topic, goes further. He does not think the permission of the Court to discharge, necessary.

After the jury have retired in possession of the cause, the Court can have no communication with them during their deliberations. Hall v. The State, 8 Ind. 439. It is the duty of the bailiff having them in charge to keep them in close confinement till they have agreed upon a verdict, no inevitable accident preventing. The Court cannot permit him to discharge them nor compel the defendant to do so. It is solely a matter in the power and discretion of the defendant himself, so far as his consent is concerned. The discharge need not necessarily take place upon, but it cannot except by, his consent. And whenever he announces his willingness that the jury may be discharged without giving a verdict and the discharge takes place upon that announcement, whether by the bailiff or the Court, or both in concert, the defendant is estopped to claim the discharge as an acquittal. The question is one of fact in such a case, in relation to the expressed consent of the defendant, given with the view to the discharge of the jury in pursuance of such consent, whereby he agrees, having calculated the chances, to waive the present and try a future chance for acquittal. It is the every-day practice for the jury, during term time, to return their verdict to the clerk in the temporary absence of the Court. See Wright v. The State, 11 Ind. 569. Now, suppose when the bailiff brings in the jury, in such absence of the Court, instead of handing up a verdict they should announce, the defendant and his counsel being present, that they had not agreed, and could not agree upon a verdict, and the defendant should then request that they be discharged from the further consideration of the cause and the bailiff shall thereupon comply with the request. Would the defendant be heard in making a claim that such discharge was an acquittal? We think not.

In regard to the degree of formality with which consent must be expressed, we need not here inquire: for in this case the highest degree characterized it. It was given in the presence, and with the approbation, of the prisoner's counsel and solemnly entered upon the record of the Court.

In most cases, acquiescence, with knowledge, and without objection, estops a party to deny consent to the various steps taken during the progress of the trial of a cause. Burton v. Ehrlich, 15 Pa. 236.--2 Wat. Grah. on New Trials, 195.--Romaine v. The State, 7 Ind. 63.

We here express no opinion as to whether this rule would be extended to the discharge of a jury.

It is further objected that the transactions in this cause occurred on Sunday; but the law allows a verdict to be returned on that day, and, as an incident, authorizes the Court to sit on that day to receive any motion or order touching it, and the discharge of the jury rendering it.

At a subsequent term, the defendant was again brought up for trial. He made two successive applications for a...

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