Mullins v. Commonwealth

• Decision Date: 22 March 1935
• Citation: 258 Ky. 529,80 S.W.2d 606
• Parties: MULLINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

80 S.W.2d 606

258 Ky. 529

MULLINS v. COMMONWEALTH.

Court of Appeals of Kentucky

March 22, 1935

Appeal from Circuit Court, Rockcastle County.

Ollie Mullins was convicted of murder, and he appeals.

Reversed.

Williams & Denney, of Mt. Vernon, for appellant.

Bailey P. Wootton, Atty. Gen., Ray L. Murphy, Asst. Atty. Gen., J M. Kennedy, of Monticello, and Joel M. Jones and Robt. B Bird, both of Mt. Vernon, for appellee.

STANLEY Commissioner.

At the April term, 1934, of the Rockcastle circuit court, the appellant, Ollie Mullins, was placed upon trial for the murder of Roscoe Morris. After the case had been submitted to the jury for its verdict, the following order was entered by the court: "The jury in the above styled case having returned into open court pursuant to adjournment, and after the juror, Ed Ballard, had been sworn by the court, made the following statement, viz: That on Friday night after the jury had been empaneled and sworn and at a time when the jury had been taken by the sheriff of Rockcastle County to the Rockcastle Hotel to a room where they were kept for the night; that he, the said Ballard, left said room alone and went down upon the streets of Mt. Vernon and across the streets to a restaurant where he stayed for some time and later returned to the room occupied by the jurors; that during his absence from the other jurors, he was not guarded by the sheriff or any of his deputies or guard of any kind. It is, therefore, ordered by the court that the jury in this case, because of said separation, be discharged and this case continued to the next term of this court."

When the case was called for trial at the next term of court, the defendant filed a motion setting out the proceeding and stating that it was over his protest, objection, and exception that the court had dismissed the jury and continued the case, and by reason of which facts he had been put in jeopardy and was entitled to have the prosecution dismissed and so prayed. So far as the record discloses, this motion was ignored by the court. The trial continued, and the defendant was found guilty and sentenced to life imprisonment. On this appeal, several grounds are urged as authorizing a reversal of the judgment, but it is necessary to consider only the plea of former jeopardy.

Section 13, a portion of the Bill of Rights, of our Constitution, provides: "No person shall, for the same offense, be twice put in jeopardy of his life or limb."

This expresses a doctrine so ancient that it is impossible to trace its origin. It seems always to have been imbedded in every system of jurisprudence, as it is "a part of the universal law of reason, justice and conscience." 16 C.J. 233; Nolan v. State, 55 Ga. 521, 21 Am.Rep. 281; Stout v. State, 36 Okl. 744, 130 P. 553, 45 L.R.A. (N. S.) 884, Ann.Cas. 1916E, 858; Rogers v. Commonwealth, 257 Ky. 495, 78 S.W.2d 340. The view has been taken that jeopardy does not attach until there is a verdict, but it is now quite uniformly regarded as attaching when the jury is impaneled and sworn. Commonwealth v. Olds, 5 Litt. (15 Ky.) 137; O'Brian v. Commonwealth, 9 Bush (72 Ky.) 333, 15 Am.Rep. 715; Williams v. Commonwealth, 78 Ky. 93; Robinson v. Commonwealth, 88 Ky. 386, 11 S.W. 210, 211, 10 Ky. Law Rep. 972; Commonwealth v. Gray, 249 Ky. 36, 60 S.W.2d 133. Notwithstanding the unqualified language of the Constitution, to prevent frustration, and in deference to the necessities of justice, the courts with practical unanimity have engrafted exceptions upon it. Thus we have the interpretation that the grant of immunity is in its nature only a restraint on the courts; that the Constitution does not promise a man protection if his second jeopardy attaches by reason of his own act, but does promise him protection if it arises from the act of another. So if a mistrial was caused by the accused, his plea of former jeopardy will not be heard. It may have been in consequence of his own wrong or request, or by his consent. Robinson v. Commonwealth, supra; Riley v. Commonwealth, 190 Ky. 204, 227 S.W. 146; Commonwealth v. Gray, supra; 16 C.J. 254, 255.

So, also, the courts recognize that the force of necessity is "a power which no combination of men can successfully oppose and that it overrides all human laws, even our written constitutions." Bishop's New Criminal Law, § 1035. If there is any legal necessity for discharging the jury, the right of the court to order a mistrial on that ground exists without the defendant's consent. State v. Thompson, 58 Utah 291, 199 P. 161, 38 A.L.R. 697. "In order, however, to justify an exercise of this power, the occasion for it must be very cogent, or, as some courts have said, there must be an absolute necessity." 8 R.C.L. 153. See, also, 16 C.J. 250; Roberson's Criminal Law, § 123.

Concerning the discharge of the jury before the end of the trial, it is stated in Robinson v. Commonwealth, supra: "It must always be understood, however, that if the dismissal be from necessity, it does not operate as a bar to a further prosecution. This is necessary to the proper administration of justice."

And it is pertinently said in Yarbrough v. Commonwealth, 89 Ky. 151, 154, 12 S.W. 143, 144, 11 Ky. Law Rep. 351, 25 Am.St.Rep. 524: "One trial, and only one, is an elementary principle in criminal law. Any other rule would be tyranny in a free country. It therefore has constitutional sanction. Exceptions exist, from necessity, to the rule, but they should be few, and strictly guarded. They arise most frequently in cases where trials are begun, but not ended. Undoubtedly jeopardy may attach without waiting for a verdict. In a combat intended to be deadly, it cannot well be said one is not in danger until he is hit. If, however, a necessity exists for the discharge of the jury before the finding of a verdict, then the proper administration of justice requires that this should constitute an exception to the general rule. To allow one charged with crime, however heinous, to go free because the jury had to be discharged by reason of the illness of a member of it, or the sudden sickness of the judge, would be a defeat of the end sought, at the expense of reason. This necessity may arise in various forms. One is a mistrial from a failure of the jury to agree."

See, also, O'Brian v. Commonwealth, supra; Williams v. Commonwealth, 78 Ky. 93; Sacra v. Commonwealth, 123 Ky. 578, 96 S.W. 858, 29 Ky. Law Rep. 1010; Riley v. Commonwealth, 190 Ky. 204, 227 S.W. 146.

What is to be deemed a necessity must obviously be left open, for who can preconceive the multifarious conditions arising when the human element is the factor? The decisions must be confined to the given cases. It must be determined in each case whether or not the circumstances necessitate the discharge of the jury. Even when there was a repetition of the exact condition, or a presentation of analogous circumstances, the judicial minds have not always agreed. Wharton's Criminal Law, § 394, lists a number of instances where the discharge of the jury was held to be necessary, and hence that jeopardy did not attach. See, also, Roberson's Kentucky Criminal Law, § 122; 16 C.J. 251; State v. Hansford, 76 Kan. 678, 92 P. 551, 14 L.R.A. (N. S.) 548; annotations, 38 A.L.R. 706.

The Legislature undertook by the enactment of what are sections 243 and 252 of the Criminal Code to provide that the dismissal of a prosecution and discharge of the jury during the progress of a trial or after submission should not be a bar to another trial, but those provisions were long ago held unconstitutional in so far as they attempt to authorize a dismissal of an indictment for felony after jeopardy attached. Williams v. Commonwealth, supra; Robinson v. Commonwealth, supra. However, section 251, Criminal Code of Practice, provides that if after retirement a juror becomes so sick as to prevent the continuance of his duty, or other accident or cause occur preventing the jury from being kept together, or if there is no probability that the jury can agree upon a verdict, the court may discharge them; or if a juror becomes sick temporarily, the court may permit him to separate from the others. This does not define or enumerate all the causes upon the happening of which the power of the court may be exercised. The statute is only intended as an adoption of the legal rule that a case of actual necessity must exist before the jury can be discharged. O'Brian v. Commonwealth, supra.

While attempts to say what is to be regarded as creating a necessity have not been satisfactory, it may be generally stated negatively that an order of mistrial is not necessary if the occurrence is a matter that could be waived by the accused and which would not, ipso facto, vitiate any verdict that might be returned. In 16 C.J. 253, it is written: "At common law, where the jury separated after retiring, they might be discharged and a new jury sworn, by whom the accused might then be tried; and this rule has been followed in some of the states. In other states, however, it has been held that where a jury disperse or separate after they have retired to make up their verdict, such circumstance does not authorize their discharge, and if they are discharged a plea of former jeopardy should be sustained in a subsequent prosecution. Where, even with the consent of accused, the separation of the jury is permitted before they retire, and on reassemblage any of them are missing, and the jury are discharged for this reason, he afterward may plead former jeopardy."

Let us look to our precedents, which on the facts are only analogous but on the principle are controlling. Our leading case is O'Brian v. Commonwealth, 9 Bush (72 Ky.) 333, 15 Am.Rep. 715. After the introduction of witnesses, a juror disclosed that he had...