People v. Warden of City Prison of New York,

CourtNew York Court of Appeals
Writing for the CourtCHASE
Citation202 N.Y. 138,95 N.E. 729
PartiesPEOPLE ex rel. v. WARDEN OF CITY PRISON OF CITY OF NEW YORK.
Decision Date09 May 1911

202 N.Y. 138
95 N.E. 729

PEOPLE ex rel.
v.
WARDEN OF CITY PRISON OF CITY OF NEW YORK.

Court of Appeals of New York.

May 9, 1911.


Appeal from Supreme Court, Appellate Division, First Department.

Application for writ of habeas corpus by the People, on the relation of Vincent L. Stabile, against the Warden of the City Prison of the City of New York. From an order of the Appellate Division (139 App. Div. 488,124 N. Y. Supp. 341), affirming an order sustaining the writ and discharging relator from custody, defendant appeals. Affirmed.

The relator was indicted for the crime or murder in the first degree. The indictment was brought to trial at a term of the Court of General Sessions of the city and county of New York, held by a judge of said court with a jury. The trial continued from the 7th until the 14th day of March, 1910. The jury was then discharged, and the relator was remanded to custody. On March 22, 1910, a writ of habeas corpus was obtained by the relator and duly served. The return to the writ stated that the relator was in the custody of the warden of the city prison by virtue of a commitment issued by the Court of General Sessions of the county of New York following the relator's indictment for murder in the first degree. The traverse to said return denied that the relator was held under any legal warrant or writ, and it also stated that he was tried upon said indictment, and testimony was duly taken by and in behalf of the prosecution and by and in behalf of the relator upon the issues formed by his plea to said indictment of not guilty. The traverse rurther stated: That at the close of taking testimony on said trial the jury was charged by the court, ‘and thereupon the jury retired for deliberation at 5:15 o'clock p. m . Thereafter, at 6:30 p. m., the jury was taken to dinner by officers of the court, and returned from dinner at 8 o'clock p. m. and resumed their deliberation. That at 9:22 o'clock p. m. upon the same day the jury was brought into court and further charged by the court and again retired for deliberation, not less than 20 minutes being occupied in obtaining said additional charge. Thereafter upon the same day at 10:10 o'clock p. m. the jury was brought into court by order of the court without previous consultation with the defendant or his counsel and without defendant or his counsel being informed of the purpose thereof, and without the jury requesting it, and the jury being in court, the following took place between the court and the jury: The Court: Mr. Foreman, have you agreed upon a verdict? The Foreman: Not as yet. The Court: Well, I am loath to keep you together any longer. You have been in session now for over five hours, and I have charged you as fully upon the law as I can charge you. I do not see that there is any additional explanation of the law that I can give you. I discharge you from further consideration of the case.’ It also appears therefrom that the entry made by the clerk in the minutes of the court as the same was modified by consent of counsel is as follows: ‘The jury at 10:10 p. m. o'clock return to the bar, and say that they have not as yet agreed upon a verdict. Thereupon the public prosecutor and the defendant and his counsel being present and interposing no objection thereto, and in the opinion of the court a reasonable time having elapsed since the case was committed to the jury, and it appearing to the court that the jury are unable to agree upon a verdict, it is ordered that the jury be, and they hereby are, discharged from further consideration of the case.’ It also appears that a stipulation was entered into by and between the district attorney and the counsel for the relator that the entry in the minutes of the clerk of the court ‘was not intended to mean that the counsel for the defendant was informed in advance that the jury were to be discharged, and were consulted with and consented in advance that the jury be discharged, but was intended to mean that, after the jury had been discharged, no objection was interposed nor exception taken on the record, but the said counsel remained silent.’ It further appears from the affidavits annexed to the traverse that a few moments before the jury were discharged they were deliberating among themselves, and at that time stood ten for acquittal of the defendant and two for a verdict of manslaughter in the first degree, and that, while they were thus discussing the matter before them, an officer who had charge of the jury directed them to get their hats and coats and follow him, which they did, and they were conducted into the courtroom, and the statements made by the court and by the foreman of the jury were made as hereinbefore stated. The traverse to said return further stated that by reason of the trial, deliberation, and discharge of the jury as stated the relator was once put in jeopardy, and cannot be retried upon said charge of murder in the first degree, or in any other way prosecuted for said crime, and is entitled to his discharge upon the writ of habeas corpus. The relator was discharged and the opinion written by the judge holding the Special Term is reported in 67 Misc. Rep. 202,122 N . Y. Supp. 284. An appeal was taken to the Appellate Division, where the order discharging the relator was affirmed, and the opinions written thereon are reported in 139 App. Div. 488,124 N. Y. Supp. 341.

[95 N.E. 730]


[202 N.Y. 142]Charles S. Whitman, Dist.
Atty. (Robert C. Taylor, of counsel), for appellant.

202 N.Y. 143]Austen G. Fox, for respondent.
[202 N.Y. 144]CHASE, J. (after stating the facts as above).

In England, during the reign of Edward III, vigorous means were resorted to for the purpose of compelling unanimity among jurymen. Jurors who dissented from the rest were committed to prison, and justices resorted to carrying jurors about with them in carts until they argeed. Crabb's English Law, 300. It became the commonlaw rule that persons serving as jurymen must decide upon a verdict in every case presented to them, and coercion in different forms was permitted and generally exercised. Such rule not only is no longer accepted and enforced, but the rule itself is now only a matter of interest to persons studying the history and development of the law. The old rule is stated by legal writers (Lord Coke, 1 Inst. 227b; 3 Inst. 110), and the records of cases establishing and asserting it have

[95 N.E. 731

been frequently collated and discussed in more recent opinions. People v. Olcott, 2 Johns. Cas. 301, 307, 309, 1 Am. Dec. 168;People v. Sheldon, 156 N. Y. 268, 50 N. E. 840, 41 L. R. A. 644, 66 Am. St. Rep. 564. There is no reason that would justify the repetition of such quotations in [202 N.Y. 145]this opinion, and I refer to the old rule simply as a statement preliminary to quoting the statute that now asserts and controls the discretion resting in a trial judge or justice regarding the discharge of a jury, called and sworn in a criminal case, prior to rendering a verdict. Coercion of jurors has never found favor in this state. By the Revised Statutes of 1829 it was provided: ‘Attaints upon untrue verdicts are abolished; and for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding, civil or criminal, except to indictment for corrupt conduct in rendering such verdict, in the cases prescribed by law.’ 2 R. S. pt. 3, c. 7, tit. 4, art. 4, § 69. Early in the last century Mr. Justice Kent in People v. Olcott, supra, referring to the commonlaw rule and reviewing at length many of the cases that had been decided prior to that time, said: ‘The doctrine of compelling a jury to unanimity, by the pains of hunger and fatigue, so that the verdict, in fact, be founded not on temperate discussion, and clear conviction, but on strength of body, is a monstrous doctrine, that does not, as St. Germain evidently hints, stand with conscience, but is altogether repugnant to a sense of humanity and justice. A verdict of acquittal or conviction obtained under such circumstances, can never receive the sanction of public opinion. And the practice of former times of sending the jury in carts from one assize to another, is properly controlled by the improved manners and sentiments of the present day.’ Growing out of the common-law rule that we have stated, it was, by Lord Coke, asserted that a jury sworn and charged in a criminal case could not be discharged until they had rendered a verdict.

In the case of People v. Olcott, supra, Justice Kent reviews the authorities to sustain the claim that a court has no power to discharge a jury in a criminal case until they have agreed upon a verdict, and concludes that the [202 N.Y. 146]power to discharge a jury in certain cases before they render a verdict exists. In the Olcott Case the defendants were indicted for a misdemeanor, and Justice Kent left a possible doubt as to the rule stated by him being applicable to capltal cases by saying: ‘If the question in capital cases be doubtful, there is nothing to render it so in cases of misdemeanor.’ Long before the adoption of our Code of Criminal Procedure in 1881, it became the settled rule in this state that the discharge of a jury in all cases rests in the sound discretion of the court. People v. Denton, 2 Johns. Cas. 275; People v. Olcott, supra; People v. Goodwin, 18 Johns. 187, 205, 9 Am. Dec. 203;People v. Green, 13 Wend. 55; People v. Grant, 4 Parker's Cr. R. 527.

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54 practice notes
  • People v. Barrow
    • United States
    • United States State Supreme Court (New York)
    • April 23, 1964
    ...trial (see, e. g., In re Martinis, 20 A.D.2d 79, 244 N.Y.S.2d 949; People ex rel. Stabile v. Warden of City Prison of City of New York, 202 N.Y. 138, 152-154, 95 N.E. 729, 733-734; People ex rel. Meyer v. Warden of Nassau County Jail, 269 N.Y. 426, 430, 199 N.E. 647, 649; Matter of Mack v. ......
  • People v. Jackson
    • United States
    • New York Court of Appeals
    • October 31, 1967
    ...when a jury has been impaneled and when some evidence is taken (People ex rel. Stabile v. Warden of City Prison of City of New York, 202 N.Y. 138, 95 N.E. 729; People v. Cignarale, 110 N.Y. 23, 17 N.E. 135; People v. M'Gowan, 17 Wend. 386 (N.Y., When a defendant is put in jeopardy for a num......
  • State v. Slorah
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 5, 1919
    ...Mitchell v. State, 42 Ohio St. 383, 395, 396; State v. Richardson, 47 S. C. 166, 172, 25 S. E. 220, 35 L. R. A. 238; People v. Warden, 202 N. Y. 138, 151, 95 N. E. This leads us to inquire: First, was the respondent in jeopardy at the January term, 1918; second, if so, does any such manifes......
  • McNab v. State, 1673
    • United States
    • United States State Supreme Court of Wyoming
    • January 14, 1931
    ...Will, Sheriff, (N. D.) 166 N.W. 511; Tracy v. State, (Okla.) 216 P. 941; Ex parte Graham, 43 Tex.Crim. 463, 66 S.W. 840; People v. Warden, 202 N.Y. 138, 95 N.E. 729. Second, the judgment could not be legally modified because: (a) it is not severable; State v. Sorrentino, 31 Wyo. 129, 224 P.......
  • Request a trial to view additional results
54 cases
  • People v. Barrow
    • United States
    • United States State Supreme Court (New York)
    • April 23, 1964
    ...trial (see, e. g., In re Martinis, 20 A.D.2d 79, 244 N.Y.S.2d 949; People ex rel. Stabile v. Warden of City Prison of City of New York, 202 N.Y. 138, 152-154, 95 N.E. 729, 733-734; People ex rel. Meyer v. Warden of Nassau County Jail, 269 N.Y. 426, 430, 199 N.E. 647, 649; Matter of Mack v. ......
  • People v. Jackson
    • United States
    • New York Court of Appeals
    • October 31, 1967
    ...when a jury has been impaneled and when some evidence is taken (People ex rel. Stabile v. Warden of City Prison of City of New York, 202 N.Y. 138, 95 N.E. 729; People v. Cignarale, 110 N.Y. 23, 17 N.E. 135; People v. M'Gowan, 17 Wend. 386 (N.Y., When a defendant is put in jeopardy for a num......
  • State v. Slorah
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 5, 1919
    ...Mitchell v. State, 42 Ohio St. 383, 395, 396; State v. Richardson, 47 S. C. 166, 172, 25 S. E. 220, 35 L. R. A. 238; People v. Warden, 202 N. Y. 138, 151, 95 N. E. This leads us to inquire: First, was the respondent in jeopardy at the January term, 1918; second, if so, does any such manifes......
  • McNab v. State, 1673
    • United States
    • United States State Supreme Court of Wyoming
    • January 14, 1931
    ...Will, Sheriff, (N. D.) 166 N.W. 511; Tracy v. State, (Okla.) 216 P. 941; Ex parte Graham, 43 Tex.Crim. 463, 66 S.W. 840; People v. Warden, 202 N.Y. 138, 95 N.E. 729. Second, the judgment could not be legally modified because: (a) it is not severable; State v. Sorrentino, 31 Wyo. 129, 224 P.......
  • Request a trial to view additional results

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