People v. Harding

• Decision Date: 23 April 1884
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HARDING.

19 N.W. 155

53 Mich. 481

PEOPLE v. HARDING.

Supreme Court of Michigan

April 23, 1884

The purpose of a plea is to tender an issue upon some fact not already in the case that proof may be taken in respect to it if the issue is accepted. But if the fact is in the case, and especially if it is so conclusively established by the record that no contrary averment would be admissible, a plea setting up the fact would be idle, and, instead of demurring to it, a motion should be made to strike it from the files.

Constitutional provisions must be interpreted with reference to the times and circumstances under which the constitution was formed and of the general spirit of the times, and the prevailing sentiments among the people.

It is contrary to the spirit of the Michigan constitution of 1850 to narrow the common-law privileges of accused persons.

The constitutional provision that "no person, after acquittal upon the merits, shall be tried for the same offense," (Mich. Const. art. 6, � 29,) was in enlargement of the common-law privileges of accused persons which did not extend to making a trial upon an insufficient charge a bar to a subsequent trial upon an accusation made in due form. It has no application to a case in which the jury have disagreed, and have been discharged from further consideration thereof.

The discharge of a jury, upon their reporting that they cannot agree, implies that the judge assents to their conclusion that they are unable to agree, and that he decides it to be necessary to discharge them without a verdict. And this decision is conclusive. But such a discharge is no bar to a new trial.

Exceptions from recorder's court, Detroit.

J.J. Van Riper, for the People.

John G Hawley, for defendant.

COOLEY, C.J.

Information for larceny. The respondent pleaded not guilty, and the case was brought to trial July 11, 1883. The record states that the jury "duly elected, tried, and sworn, sit together hear the evidence in the case, the argument of counsel, and the charge of the court, retire under charge of an officer duly sworn to attend to them, to consult upon their verdict having been absent for a time, return into court, and, having been inquired of as to their verdict, say upon their oath aforesaid, in the presence of the defendant, that they are unable to agree upon a verdict. Thereupon they are discharged by the court from further consideration of this case." The respondent was again brought to trial August 15, 1883, and the record of the trial is the same as that of the first, except the conclusion, which is as follows: "They find that they are unable to agree upon a verdict. Thereupon they are discharged by the court from further consideration of this case." The case was called for a third trial September 5, 1883, when respondent filed two pleas puis darrein continuance, in which he set out the proceedings on the two previous trials, and the discharge of the two juries, and prayed judgment if the people ought further to prosecute the information. The prosecuting attorney demurred to these pleas, and the court sustained the demurrer. The case then went to trial on the plea of not guilty, and the respondent was convicted. He alleged exceptions for the purpose of bringing before this court a question which has since been disposed of in another case, and the case is brought up for review before judgment. The only question now presented for decision is whether either the first or the second trial is a bar to further prosecution.

1. The two special pleas have no office to perform in the case, and should have been stricken from the files. This is too plain to require either argument or illustration. The purpose of a plea is to tender an issue upon some fact not already in the case that proof may be taken in respect to it if the issue is accepted. If the fact is already in the case, the plea is idle, and it becomes an absurdity when the fact is not only established by the record of the court in the very case in which the plea is tendered, but so conclusively established that no averment to the contrary could be listened to or received. And such was the case here. The proceedings on the former trials were recited in the record as much at large as they were or could be in the pleas, and the respondent was entitled to all the benefits which the law could give him, the facts so appearing. The prosecutor should therefore have moved to strike the pleas from the files instead of taking an idle issue upon them.

2. But the question remains whether either of the former trials was a bar; and upon this counsel have presented their views. It is contended on the part of the respondent that when a jury is called and sworn for the trial of a criminal accusation the respondent is in legal jeopardy, and that he is entitled to a verdict from that jury, and any discharge of it without verdict except for some reason of controlling necessity is equivalent to an acquittal, and may be relied upon as such. And such a reason, it is said, does not appear in this case. On the other hand, the prosecution contends that in this state only an acquittal upon the merits is a bar to a further prosecution. This last contention is founded upon section 29 of article 6 of the state constitution , the first clause of which provides that "no person, after acquittal upon the merits, shall be tried for the same offense." This, it is argued, is a restriction upon the common-law right, and limits the privilege to rely upon an acquittal as a bar to the cases in which the acquittal was upon the merits. It is a little remarkable that this point, if tenable or even plausible, should be now raised for the first time. The present constitution has now been in force a third of a century, and during that time the occasions for raising the same question have been numerous, but have never been embraced. This court in its decisions has in several cases given to accused parties the benefit of common-law rules respecting legal...