People v. Schoenith

• Decision Date: 27 October 1880
• Citation: 7 N.W. 70,44 Mich. 489
• Court: Michigan Supreme Court
• Parties: PEOPLE v. SCHOENITH.

7 N.W. 70

44 Mich. 489

PEOPLE v. SCHOENITH.

Supreme Court of Michigan

October 27, 1880

The fact that a jury in a criminal case is discharged for failure to agree cannot be pleaded in bar to a second trial for the same offence, nor can an instruction by the court upon such first trial, to the effect that the evidence as to a part of the charge covered by the information was insufficient, be treated on the second trial as equivalent to an acquittal as to such portion. When the offence charged is one that the recorder's court has jurisdiction of, the fact that conviction is for a less offence included within the greater will not oust its jurisdiction.

Exception from recorder's court of Detroit.

Otto Kirchner, for the People.

Miller & Clarke, for respondent.

GRAVES J.

This case comes up on exceptions before judgment. Without conceding that the points suggested by the defence are legitimately raised, they will be disposed of briefly.

The prisoner was charged by information in the recorder's court of the city of Detroit with having in the night-time broken and entered a store in that city, not adjoining to or accupied with a dwelling-house, with intent to steal goods and chattels therein and with having then and there feloniously stolen, taken and carried away the same of the value of $7.50. He pleaded not guilty and being put on his trial before a jury the recorder, where the testimony was concluded, among other things charged that the evidence was not sufficient to convict of the breaking and entering and that it was for the jury to find whether the prisoner was or was not guilty of the larceny. The jury proceeded to deliberate upon the case and finally were "unable to agree" and were discharged.

His counsel then moved in effect that he be no further prosecuted: first,...