People v. Schepps, 122.

• Decision Date: 14 May 1925
• Docket Number: No. 122.,122.
• Citation: 203 N.W. 882,231 Mich. 260
• Parties: PEOPLE v. SCHEPPS.
• Court: Michigan Supreme Court

231 Mich. 260

203 N.W. 882

PEOPLE

v.SCHEPPS.

No. 122.

Supreme Court of Michigan.

May 14, 1925.

Error to Recorder's Court of Detroit; William M. Heston, Judge.

Joseph Schepps was convicted of robbery, and brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Robert T. Speed, of Detroit, for appellant.

Andrew B. Dougherty, Atty. Gen., and Robert M. Toms, Pros. Atty., and Eugene A. Walling, Asst. Pros. Atty., both of Detroit, for the People.

STEERE, J.

Defendant Joseph Schepps, was arrested, held for trial to the recorder's court of the city of Detroit, and jointly informed against with three claimed associates, charging them with the crime of robbery, being armed with dangerous weapons. As charged in the information and shown by the testimony under which defendant was convicted, the transaction was what is commonly known as a daylight holdup, in which the defendants, while riding in a large sedan car on one of the streets of Detroit, pulled up past a car in which the complaining witness, Killoran, was riding alone, crowded him into the curb until he stopped, then held him up with revolvers, pulled his cap down over his eyes, expeditiously plundered him and his car of a bag containing $1,825 and some other articles which took their fancy, and then quickly sped away in their car.

Defendant pleaded not guilty to the information, was separately tried by a jury on March 14, 1922, and found guilty. When the case was called for trial on that day and a jury about to be drawn defendant's counsel interposed a motion for discharge of the accused, based upon the files and records of the case showing that upon the afternoon of March 9, 1922, the case had been called for trial, a jury drawn, examined, and sworn and discharged from the case the next morning, without legal cause as was claimed, and trial continued until March 14, 1922.

The only question here pressed for consideration is that of former jeopardy. The record shows that on March 9, 1922, this case came up for trial in the recorder's court, and a jury was impaneled and sworn, after being accepted by both sides. The prosecutor then stated he desired to take up a matter with the court in the absence of the jury, and by direction of the court the jury was conducted from the court room. The prosecutor then called the court's attention to an article on the front page of a daily newspaper of that date prejudicially featuring the case, as he claimed, and suggested that the jurors either be especially cautioned on the subject, or, if sequestered, the officers be instructed to clip such articles from the newspapers before the jury were allowed to have them. The jury was then called in, and the court gave them some instructions as to their conduct, telling them that they would be kept together during the trial, occupying quarters in the building which had been prepared for accommodation of jurors in such cases, and that they should not talk about the case either amongst themselves or with the officers who had them in charge. They then retired to their jury room. A juror named Look soon asked permission to speak with the judge, and was allowed to do so, privately at first and apparently until he disclosed what he had in mind, when the matter was publicly taken up in open court as follows:

‘Court: What was it you were trying to explain to the court a moment ago?

‘Juror T. E. Look: Why, being that I have not heard any of the facts in the case, I would be prejudiced against the state for locking me up.

‘Court: Why?

‘Juror: Because I feel I am here on my honor, and I am willing to work-I am not saying anything about that.

‘Court: Do you realize that it is a matter that is within the discretion of the court?

‘Juror: Yes; I do, except the fact--

‘Court: Do you fell that under the circumstances, owing to the fact that you are going to be locked up, that you are not going to be able to give the state and the respondent a fair trial?

‘Juror: Why, I have declared that is how I feel about it.

‘Court: Do you think that you are not going to be able to give a fair verdict in this case owing to the fact that the court has seen fit to confine you during this trial?

‘Juror: Why, I don't think so. I feel this way, your honor: If there has been no facts brought out and there was no question about us jurors being prejudiced by somebody or something like that, I would not feel that way. I don't know anything about the case.

‘Court: But you are going on record here in this court by saying that you are not going to be able to give a fair trial in this case owing to the fact that the court has seen fit to confine you. That is true, is it?

‘Juror: I feel that way, your honor, yes.

‘Court (addressing counsel): Well, what have you to say, gentlemen?’

What, if anything, was said by counsel is not disclosed, but the record shows further inquiry as follows:

‘Juror: I am willing to be put on my honor that I won't say anything about it, because there has not been any facts brought out; and that is just the way I feel about it. If anything had been gone into at all, I would not blame you at all for locking us up, because I know that is the procedure. On the other hand, if it is both parties that wants to lock us up, why, I would be prejudiced against both.

‘Court: Well, who is locking you up?

‘Juror: I think it is the state.

‘Court: I'll tell you it is the court. The state has nothing to do with it; neither has the defendant or his counsel.

‘Juror: Well, that being the case, it sort of removes my prejudice. I thought it was the state or the city.

‘Court: Neither the city nor the state has anything to do with it, neither has the defendant nor his counsel said anything to me. I am to blame for your being confined.

‘Juror: Well, I can't have any prejudice against you-it wouldn't pay.

‘Court: Well, do you still think that you would be able to sit as a fair and impartial juror in the case?

‘Juror: Why, now that you have explained the circumstances, I believe that I could, regardless of inconvenience.

‘Court: All right.’

The jury was then put in charge of an officer, and the court adjourned until the following morning. On the opening of court the next morning it was called to the attention of the presiding judge that juror Look had undertaken to interrogate the officer in charge on the subject, and the latter, when called before the court and sworn, testified that Look had asked him how long they would keep them locked up if they could not agree, to which the officer had replied that it was discretionary with the court. The prosecutor then urged that the attitude of the juror after learning the jury would be confined during the trial and his declaration to the court that it would prejudice him against the state was manifestly prejudicial to an impartial administration of justice, giving rise to an overruling necessity for discharging the jury, and moved the court to declare the proceeding a mistrial. To this counsel for defendant objected. The court thereupon said:

‘Under all the circumstances the court feels that it is his duty to grant the motion just made by the prosecuting attorney, and the court does declare it a mistrial.’

Counsel for defendant then moved his discharge on the ground he has been once placed in jeopardy by calling and swearing a jury, and the action of the court in discharging the jury at that stage of the proceedings amounted in legal effect to discharging the prisoner. This motion was denied and exception taken. The case was then adjourned for trial until March 14 next. When the case was called on that date, objection was made to a retrial because of former jeopardy, as before related.

Our first Constitution, of 1835 (article 1, § 12), adopted the technical word ‘jeopardy’ of the common law, and provided in its declaration of rights that--

‘No person, for the same offense, shall be twice put in jeopardy of punishment.’ 1 Comp. Laws 1915, p. 118.

The framers of our Constitution of 1850 (articles 6, § 29), presumably familiar with the constitutional provision on the subject, rejected the technical phraseology there used, saying in concise and plain terms:

‘No person after acquittal upon the merits shall be tried for the same offense.’ 1 Comp. Laws 1915, p. 164.

In like language our present Constitution (article 2, § 14) provides:

‘No person, after acquittal upon the merits, shall be tried for the same offense.’ 1 Comp. Laws 1915, p. 212.

Just how under that provision of our Constitution the mere act of administering the oath to a jury amounts to an ‘acquittal upon the merits' of one accused of crime before even a word of testimony has been heard is a question which apparently necessitates resort to the omitted technical word ‘jeopardy’ for an answer. It may be conceded as a generally recognized rule of bench law, when unmodified by constitutional or statutory provision, that jeopardy attaches as soon as a jury is called and sworn for the trial of an accused under a valid indictment or information for a felony, and this court has at times applied it to our constitutional provision, although it will he found in most of the cases where that rule is recognized testimony was heard and the merits of the case entered upon before the jury was discharged. Such was the case in People v. Taylor, 117 Mich. 583, 76 N. W. 158, cited for defendant. It was there said:

‘Our own Constitution may be thought to have been intended to limit this immunity...