People v. Anglin, Docket No. 162

CourtCourt of Appeal of Michigan (US)
Writing for the CourtNEWBLATT
Citation6 Mich.App. 666,150 N.W.2d 532
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. James C. ANGLIN and Leonard C. Johnson, Defendants-Appellants
Decision Date23 May 1967
Docket NumberNo. 2,Docket No. 162

Page 532

150 N.W.2d 532
6 Mich.App. 666
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
James C. ANGLIN and Leonard C. Johnson, Defendants-Appellants.
Docket No. 162.
Court of Appeals of Michigan, Division No. 2.
May 23, 1967.
Rehearing Denied July 13, 1967.

[6 Mich.App. 669]

Page 533

David N. Andreychuk, Vassar, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James J. Epskamp, Pros. Atty., Tuscola County, Caro, for appellee.

Before McGREGOR, P.J., and BURNS and NEWBLATT, * JJ.

NEWBLATT, Judge.

Defendants appeal their conviction of breaking and entering in the nighttime. 1 The [6 Mich.App. 670] principal claim on appeal is that the defendants' rights not to be placed in jeopardy twice had been violated. This claim arose out of the following set of circumstances.

Page 534

The defendants were arrested on June 25, 1960 and subsequently brought to trial on September 27, 1960. On that date the jury panel was exhausted by peremptory challenges and the sheriff was ordered forthwith to summon eight additional qualified persons as jurors. One of these additional talesmen was Alfred Wright. On Voir dire examination, upon being read a list of the witnesses who were to testify in the case and being asked whether he knew them, Wright indicated that he knew Herbert Beecher, the police officer who had pursued the defendants just prior to their arrest, and that his wife was some relation to Beecher. Wright was accepted as juror number 12 and the trial proceeded. After hearing the testimony of 3 witnesses and part of a fourth (Beecher), the trial was adjourned until the following morning. On the evening of September 27, 1960, the prosecutor informed the trial court that Juror Wright was the brother-in-law of the sheriff of Tuscola county. Defense counsel was informed of this fact in chambers and given two alternatives by the court: (1) the case could continue with 11 jurors, or (2) a mistrial could be declared and the jury discharged. The defendants agreed to proceed with 11 jurors. However, the court then insisted that juror Wright be excused as quietly as possible and that no mention of his relationship to the sheriff be made before the jury. Defense counsel refused so to stipulate, stating that such information had a bearing on the credibility of the sheriff's officers who had already testified or who were to testify. Court was reconvened and a mistrial declared.

[6 Mich.App. 671] On December 8, 1960 the defendants were again brought to trial. This time the jury returned a verdict of guilty of the crime charged.

The defendants claim that they were twice put in jeopardy and this was in violation of Const.1908, art. 2, § 14, now Const.1963, art. 1, § 15.

The facts on this issue are deceivingly simple yet they pose such a serious question that a review of the previous decisions of the Supreme Court of this State is mandatory for resolution of the novel factual issues. The novelties will be emphasized hereafter.

The issue may be stated as follows: When and under what circumstances may a trial judge discharge a jury or order a mistrial on his own motion or on motion of the prosecutor without such trial having placed the defendant in jeopardy which would bar a retrial and conviction.

The Supreme Court has previously ruled in a number of such cases involving juror misconduct or disqualification, People v. Parker (1906), 145 Mich. 488, 108 N.W. 999; In re Ascher (1902), 130 Mich. 540, 90 N.W. 418, 57 L.R.A. 806; People v. Schepps (1925), 231 Mich. 260, 203 N.W. 882; People v. Diamond (1925), 231 Mich. 484, 204 N.W. 105; People v. Sharp (1910), 163 Mich. 79, 127 N.W. 758; People v. Barker (1886), 60 Mich. 277, 27 N.W. 539; People v. Bigge (1941), 297 Mich. 58, 297 N.W. 70; litigant or attorney misconduct, People v. Davis (1925), 233 Mich. 29, 206 N.W. 522; People v. Bigge, supra; People v. Brosky (1923), 222 Mich. 651, 193 N.W. 194; difficulty or impossibility of continuing trial, In re Earle (1946), 316 Mich. 295, 25 N.W.2d 202; People v. Hutchings (1904), 137 Mich. 527, 100 N.W. 753; failure or inability of the jury to agree, People v. Parker, supra; People v. Duncan (1964), 373 Mich. 650, 130 N.W.2d 385; and error of law by the trial judge, People v. Taylor (1898), 117 Mich. 583, 76 N.W. 158; People v. Tillard (1947), 318 Mich. 619, 29 N.W.2d 111; People v. Gardner (1886), 62 Mich. 307, 29 N.W. 19. From these cases, certain principles are clear.

[6 Mich.App. 672] A defendant cannot be in jeopardy until a jury is impaneled and sworn. People v. Tillard, People v. Taylor, People v. Schepps, People v. Barker, supra.

When a jury is discharged on motion of the defendant or with his consent or acquiescence, he shall not be deemed to have

Page 535

been in jeopardy. People v. Taylor, supra; People v. Schepps, supra; People v. Fochtman (1924), 226 Mich. 53, 197 N.W. 166; People v. Gardner, supra; Raslich v. Bannan (6 Cir., 1925), 273 F.2d 420.

The general rule as to whether after a discharge of a sworn jury a defendant has been in jeopardy is given in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, where the court said:

'We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they inteefere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge, and the security which the public have for the faithful, sound, and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.'

This has been quoted, in part, in many Michigan decisions. Earle, Ascher, Schepps, and Sharp, all previously cited. The Perez test of 'manifest necessity' to prevent defeating the ends of public justice has been rephrased in the Michigan decisions. It is [6 Mich.App. 673] frequently phrased in terms of 'urgent circumstances for plain and obvious causes'. In Brosky, 222 Mich. at page 654, 193 N.W. at page 195, the court said:

'With reference to the power of courts to dismiss juries, it is observed by Ruling Case Law:

"American authorities generally announce the rule that the power to discharge the jury is within the sound discretion of the trial judge, and that his exercise of such discretion will not be reviewed by the appellate courts unless its clear abuse appears. The power ought, of course, to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.' 16 R.C.L. 321.'

The test since Parker has been phrased in terms of 'overruling or...

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15 practice notes
  • People v. Beck, 160668
    • United States
    • Supreme Court of Michigan
    • July 27, 2022
    ...where facts are found upon which such action can be based. But the facts must be found and placed upon the record."); People v Anglin, 6 Mich.App. 666, 674; 150 N.W.2d 532 (1967) ("In dealing with cases of alleged juror disqualification or misconduct discovered after the jury has been impan......
  • People v. Gardner, Docket No. 9716
    • United States
    • Court of Appeal of Michigan (US)
    • January 17, 1972
    ...v. Sharp, 163 Mich. 79, 127 N.W. 758 (1910); In re Ascher, 130 Mich. 540, 90 N.W. 418 (1902); People v. Henley, Supra; People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532 (1967). Thus, there are circumstances in which, because of manifest necessity, it is proper for the trial judge to declare......
  • People v. Bowman, Docket No. 8088
    • United States
    • Court of Appeal of Michigan (US)
    • October 26, 1971
    ...for a mistrial which would then justify such action by the court, even in absence of the defendant's consent. People v. Anglin (1967), 6 Mich.App. 666, 150 N.W.2d 532. The objections raised by defendant and upon which his motion for a mistrial was based were substantially without merit. How......
  • Lewis v. State, No. 931
    • United States
    • Supreme Court of Alaska (US)
    • April 7, 1969
    ...substantially similar to that of 'manifest necessity.' State v. Lanier, 205 So.2d 671, 673-674 (Fla.Ct.App.1968); People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532, 538 (1967); State v. Connors, 59 Wash.2d 879, 371 P.2d 541, 545 (1962). More recently the Supreme Court said in Downum v. Unit......
  • Request a trial to view additional results
15 cases
  • People v. Beck, 160668
    • United States
    • Supreme Court of Michigan
    • July 27, 2022
    ...where facts are found upon which such action can be based. But the facts must be found and placed upon the record."); People v Anglin, 6 Mich.App. 666, 674; 150 N.W.2d 532 (1967) ("In dealing with cases of alleged juror disqualification or misconduct discovered after the jury has been impan......
  • People v. Gardner, Docket No. 9716
    • United States
    • Court of Appeal of Michigan (US)
    • January 17, 1972
    ...v. Sharp, 163 Mich. 79, 127 N.W. 758 (1910); In re Ascher, 130 Mich. 540, 90 N.W. 418 (1902); People v. Henley, Supra; People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532 (1967). Thus, there are circumstances in which, because of manifest necessity, it is proper for the trial judge to declare......
  • People v. Bowman, Docket No. 8088
    • United States
    • Court of Appeal of Michigan (US)
    • October 26, 1971
    ...for a mistrial which would then justify such action by the court, even in absence of the defendant's consent. People v. Anglin (1967), 6 Mich.App. 666, 150 N.W.2d 532. The objections raised by defendant and upon which his motion for a mistrial was based were substantially without merit. How......
  • Lewis v. State, No. 931
    • United States
    • Supreme Court of Alaska (US)
    • April 7, 1969
    ...substantially similar to that of 'manifest necessity.' State v. Lanier, 205 So.2d 671, 673-674 (Fla.Ct.App.1968); People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532, 538 (1967); State v. Connors, 59 Wash.2d 879, 371 P.2d 541, 545 (1962). More recently the Supreme Court said in Downum v. Unit......
  • Request a trial to view additional results

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