State v. Allen

• Decision Date: 05 November 1898
• Docket Number: 11143
• Citation: 54 P. 1060,59 Kan. 758
• Parties: THE STATE OF KANSAS v. PETER ALLEN
• Court: Kansas Supreme Court

54 P. 1060

59 Kan. 758

THE STATE OF KANSAS v. PETER ALLEN

No. 11143

Supreme Court of Kansas

November 5, 1898

Decided July, 1898.

Appeal from Cowley District Court. W. T. McBride, Judge.

Judgment reversed.

L. C Boyle, Attorney General, J. C. Stanley, County Attorney, for the State. Joseph O'Hare, of counsel.

O. P Fuller, J. C. Pollock and Smith & Cogdal, for appellant.

OPINION

JOHNSTON J.

At the April term, 1898, of the District Court of Cowley County, Peter Allen was convicted of manslaughter in the third degree upon an information charging him with the wilful, deliberate and premeditated murder of John Mann. Before the trial, upon which a conviction was had, the defendant filed a plea of former jeopardy, alleging a trial upon the same charge at the November term, 1897, of the same court, before a jury duly impaneled, and that evidence on the part of the State and the defendant was offered, and that after the evidence had been closed and the case fully submitted to the jury for the purpose of determining his guilt or innocence, the jury were arbitrarily discharged from consideration of the case and without any sufficient or lawful reason therefor; and that having once been in jeopardy he could not again be placed upon trial. The records of the court were introduced and showed the arraignment, the impaneling of the jury at the former trial, the introduction of evidence on the part of the State and the defendant, which continued and occupied the time from December 2 until December 8, when the arguments were made and the case finally submitted to the jury. The record made at the conclusion of the trial reads as follows:

"And now on this ninth day of December, 1897, the jury not having agreed upon a verdict in the above entitled cause, the jury is discharged from further consideration of this case. The bond of the defendant is by the court on his own motion, reduced to $ 3,000, and this case is continued until next regular term of this court, and the clerk is directed to approve such bond if signed by good and sufficient sureties."

It does not appear from the record that the jury was unable to agree, nor is there any record entry of an absolute necessity for their discharge. Some testimony was admitted at the trial of this plea, but it was received under objection, and it is contended that only record evidence is admissible. The contention of the defendant is not that a mis-trial operates as a bar to a further proceeding, but it is that the record must affirmatively show that some of the reasons enumerated in the Code for the discharge of a jury without a verdict actually existed. It does not appear upon the record that the jury could not have agreed, nor whether a reasonable time was given them within which to reach an agreement. It does not show that the jurors informed the court or held the opinion that an agreement was improbable, nor was there any finding of the court that the jury after being given a reasonable time for deliberation were unable to agree upon a verdict; indeed, it does not appear that the court exercised its judgment on the question as to whether or not there was a probability of agreement or necessity for the discharge of the jury without having rendered a verdict.

The court cannot arbitrarily discharge a jury, nor should it ever be discharged until it appears from the statements of the jurors and the facts and circumstances of the case that every reasonable hope of agreement has vanished. The length of time a jury should be kept together and the improbability of an agreement must be determined by the trial court from the facts and circumstances of the particular case, and its decision will be conclusive unless it has abused its discretion in that regard. Good reason must exist for the discharge of the jury, and one which the law will recognize as an absolute necessity; and a discharge without sufficient reason operates as an acquittal. The statute prescribes the grounds authorizing a discharge of the jury without prejudice to the prosecution, and they...