Penn v. State

• Decision Date: 27 May 1896
• Citation: 35 S.W. 973
• Parties: PENN v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 973

PENN v. STATE.

Court of Criminal Appeals of Texas.

May 27, 1896.

Appeal from district court, Fort Bend county; T. S. Reese, Judge.

A. C. Penn was convicted of murder in the first degree, and appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of murder in the first degree, and given a life sentence in the penitentiary, and prosecutes this appeal.

1. Appellant, besides his plea of not guilty, presented and relied on a plea of former jeopardy. Said plea set up that the defendant had been tried at a former term of the court by a jury, and entered his plea of not guilty; that said jury had been discharged without his consent, having been together from 12 m. on the 9th of October, 1895, until 9:30 a. m. on the 10th day of October, 1895; that during that time they ate 2 or 3 meals, night intervened, and the jury could have only considered the case 9 to 10 hours; and that it was altogether too short a time for the court to say that it was improbable that they could not agree by keeping them together longer. The state made a motion to strike out said plea of former jeopardy, reciting the facts that the jury had been kept together 21 hours, and the court had adjudicated the fact at the time said jury was discharged; that they had been kept together for such a length of time as to render it altogether improbable that they could agree, and, although the appellant did not consent to the discharge of the jury, yet they were discharged. The court struck out said plea of former jeopardy, and the action of the court thereon is assigned as error.

It is within the discretion of the court to discharge the jury, and put an end to the trial, and the case will not be reversed on account of the action of the court in this regard, unless there is a clear abuse of discretion. In Varnes v. State, 20 Tex. App. 107, the jury retired to consider of their verdict at 11:30 a. m., and at 5:30 p. m., the same day, returned into court, and stated that they could not agree. The defendant objected to their discharge, and they were sent back by the court, and kept until the next morning at eight o'clock, and they again came into court, and announced that it was altogether improbable that they could agree; that the difference was upon the facts. They were then discharged by the court, over the objection of the defendant. In that case the jury were kept together about the same length of time as the jury were kept together in this case, and this court held that there was no abuse of discretion in the discharge of the jury. In O'Connor v. State, 28 Tex. App. 288, 13 S. W. 14, it appears that the witnesses, who were the jurors that tried the case, disagreed as to the time they had the case under consideration after it was submitted to them. Some of the jurors stated that they considered it 2 or 3 hours, and one testified that they were out 24 hours. None of the witnesses, however, testified that the jury were discharged over the protest, or against the consent, of the defendant. The court in that case instructed the jury to find that the plea was not true. This court in that case held "that jeopardy is a special defense, and the burden of establishing it clearly and satisfactorily rests upon the defendant; and that it devolves upon him to prove (1) that he had formerly been put upon trial under a valid indictment charging him with the murder of John Dee, and (2) that said trial was in the district court of Bosque county, and (3) that, without his consent, and without legal cause, the trial court discharged the jury trying him before said jury had rendered a verdict in said cause. Until these essentials of jeopardy were established affirmatively by the defendant, the presumption would prevail that the trial court, in discharging the jury, acted upon legal cause, and did not abuse its discretion." In that case some question was made as to whether the two indictments charged the murder of the same party. The court also says "that it was...