People v. Pribble

• Decision Date: 09 November 1976
• Docket Number: Docket No. 25738--40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William J. PRIBBLE, Defendant-Appellant. 72 Mich.App. 219, 249 N.W.2d 363
• Court: Court of Appeal of Michigan — District of US

Page 363

249 N.W.2d 363

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William J. PRIBBLE, Defendant-Appellant.

Docket No. 25738--40.

72 Mich.App. 219, 249 N.W.2d 363

Court of Appeals of Michigan.

Nov. 9, 1976.

Released for Publication Jan. 27, 1977.

[72 MICHAPP 220] Goggin, Baker & Goggin by William E. Goggin, Alma, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard D. Gay, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and D. E. HOLBROOK and T. M. BURNS, JJ.

D. E. HOLBROOK, Judge.

Defendant appeals as of right from his July 23, 1975, jury conviction of the following crimes: (1) escape with violence, M.C.L.A. § 750.193; M.S.A. § 28.390, (2) assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279, and (3) unauthorized driving away of a motor vehicle, M.C.L.A. § 750.413; M.S.A. § 28.645. On August 11, 1975, defendant was sentenced to a term of from 32 months to 4 years on the escape charge, to be served subsequent to defendant's prior life imprisonment sentence, a concurrent term of 6 to 10 years for the assault charge and a concurrent term of from 3 to 5 years on the automobile charge.

The matter was originally scheduled for trial on January 29, 1975. Due to pretrial publicity it was impossible to empanel a jury, therefore the matter was transferred to a different county. The trial was next scheduled for May 21, 1975. Again, the prosecutor, defendant, defense counsel and all witnesses appeared for purposes of trial. A jury was 'seated'. All witnesses but one for the prosecution were called, examined and cross-examined. The trial was recessed for lunch. Apparently during this break, the judge discovered that the jury had not been given its oath prior to commencement of the proceedings.

On its own motion the court then indicated the following:

'Well, ladies and gentlemen, I guess this case was progressing all too rapidly. I--Part of the procedure of trial is that after you're sworn out there, you are--also have to be sworn to try the case. ¹

This was not done. I'm going to have to declare a mistrial on this case and you will be dismissed from serving on this particular case. That's all. Thank you very much.'

[72 MICHAPP 222] Upon declaration of the mistrial by the trial judge, defense counsel indicated that he wanted the record to reflect that the granting of the mistrial was done on a motion of the court and not on motion of the defense or prosecution. Defense counsel did not object, however, to granting a mistrial.

On June 27, 1975, defense counsel filed a motion for dismissal of the charges against the defendant, alleging that the prior proceedings had placed defendant in jeopardy and that further proceedings would be in violation of defendant's constitutional rights. This motion for dismissal was denied. Defendant was then tried and convicted. Defendant appeals.

I

Defendant relies on the prohibition against double jeopardy ² to bar his subsequent conviction after a mistrial in his first trial on three charges. Defendant's contention is that the mistrial was not required by circumstances of 'manifest necessity' and that, therefore, justice does not allow reprosecution. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972). For over 150 years the courts have recognized that once jeopardy attaches only 'manifest necessity' will justify retrial. United States v. Perez, supra. In the instant case, however, there is doubt as to whether jeopardy ever attached.

[72 MICHAPP 223] Early Michigan authority held that a fully qualified jury was essential for jeopardy to attach. People v. Parker, 145 Mich. 488, 500, 108 N.W. 999 (1906). This ruling has remained undisturbed through the years. More recent authority has also indicated that jeopardy attaches when the jury is impaneled and sworn. People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972), People v. Henley, 26 Mich.App. 15, 182 N.W.2d 19 (1970), People v. Schepps, 231 Mich. 260, 203 N.W. 882 (1925), People v. Tillard, 318 Mich. 619, 29 N.W.2d 111 (1947), People v. Anglin, 6 Mich.App. 666, 150 N.W.2d 532 (1967). See, also, United States v. Jorn, supra. In the instant case, the precise reason that the trial court directed (sua sponte) a mistrial is because the jury was not sworn. Its subsequent acts would apparently be void and no jeopardy could attach. Both statute and court rule provide for jury oath. M.C.L.A. § 768.14; M.S.A. § 28.1037 provides:

'The following oath Shall be administered to the jurors for the trial of all criminal cases: 'You shall well and truly try, and true deliverance make, between the people of this state and the prisoner at bar, whom you shall have in charge, according to the evidence and the laws of this state; so help you God." (Emphasis added.)

GCR 1963, 511.7 provides:

'The jury Shall be sworn by the clerk substantially as follows:

"You and each of you do solemnly swear (or affirm) that you will well and truly try the issues joined in the cause now here pending, and, unless discharged by the court, a true verdict render; and that you will do so solely on the evidence introduced and in accordance with the [72 MICHAPP 224] instructions of the Court; so help you God." ³ (Emphasis added.)

The required oath is not a mere 'formality' which is required only by tradition. The oath represents a solemn promise on the part of each juror to do his duty according to the dictates of the law to see that justice is done. This duty is not just a final duty to render a verdict in accordance with the law, but the duty to act in accordance with the law at all stages of trial. The oath is administered to insure that the jurors pay attention to the evidence, observe the credibility and demeanor of the witnesses and conduct themselves at all times, as befits one holding such an important position. The oath is designed to protect the fundamental right of trial by an impartial jury.

'The right to be tried by an impartial jury is a constitutional guaranty. We find ourselves in harmony with the meaning of that term as quoted from 20 Words and Phrases, Perm. Ed., p. 191 (1959 Perm. Ed., p. 293), in Durham v. State (182 Tenn. 577 (584), 188 S.W.2d 555, 160 A.L.R. 746) (1945)':

"The impartial jury' guaranteed by constitutional provisions is one which is of impartial frame of mind At the beginning of trial, is influenced only by legal and competent evidence produced during trial, and bases its [72 MICHAPP 225] verdict upon evidence connecting defendant with the commission of the crime charged, and further, 'consists of twelve impartial men." People v. Kamischke, 3 Mich.App. 236, 240--241, 142 N.W.2d 21, 23 (1966), quoting from People v. DeHaven, 321 Mich. 327, 334, 32 N.W.2d 468 (1948). (Footnotes omitted.) (Emphasis added.)

An oath is any form of attestation by which a person is bound in conscience to perform an act faithfully and truthfully. 58 Am.Jur.2d, Oath and Affirmation, § 3, p. 844. See, also, 67 C.J.S., Oaths and Affirmations, § 1, p. 4. The jury has a continuing duty. The Legislature, by statute, and the courts, by court rule, have provided for such an oath for jurors. The Supreme Court of Iowa has observed:

'The authorities recognize various kinds of oaths, among which are the oath taken by a witness, the oath of an affiant to attest the truth of a writing, and the qualifying oath, juramentum promission-is, such as the one here in question, which is a pledge or promise, taken by one chosen to perform some duty. * * *

"'All the authorities agree that the failure to take this oath (oath required by the statute) in substantially the form prescribed by law renders all the proceedings invalid * * *'." Miller v. Palo Alto Board of Supervisors, 248 Iowa 1132, 1134, 84 N.W.2d 38, 39 (1957).

See, also, 58 Am.Jur.2d, New Trial, § 36, p. 224, which states: 'It is essential, in the orderly procedure in a case to be tried before a jury, that the jury be duly sworn, and the failure in a criminal prosecution to swear the jury is regarded as a fatal defect.'

It is apparent that had this trial proceeded to conclusion without a properly impaneled and sworn jury, any resulting conviction would have been invalid. Defendant would have had the right to have any conviction resulting from a nonsworn jury trial overturned on appeal. Jeopardy could not attach in [72 MICHAPP 226] the instant case where the jury was not given the oath which would authorize them to serve as a jury.

II

The conviction cannot be overturned on strict double jeopardy grounds. An analogous argument can be made using the due process clause, U.S.Const., Am. XIV; Const.1963, art. 1, § 17, as the basis for such a contention. Although jeopardy did not technically attach, it could be argued that it is fundamentally unfair to put defendant through a trial twice even though jeopardy did not technically attach. Defendant does point out that our Supreme Court has held:

'The purpose behind the double jeopardy provision of the Fifth Amendment was stated by the United States Supreme Court in Green v. United States, 355 U.S. 184, 187--188, 78 S.Ct. 221 (223), 2 L.Ed.2d 199 (204) (1957), as follows:

"(T)he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' People v. Grimmett, 388 Mich. 590, 597, 202 N.W.2d 278, 281 (1972). (footnotes omitted.)

See, also, People v. Gardner, supra. In Illinois v. Somerville, supra, the Court reiterated that manifest necessity will...