State v. Barnes

• Decision Date: 25 August 1909
• Citation: 103 P. 792,54 Wash. 493
• Parties: STATE v. BARNES.
• Court: Washington Supreme Court

103 P. 792

54 Wash. 493

STATE v. BARNES.

Supreme Court of Washington, En Banc.

August 25, 1909

Appeal from Superior Court, Walla Walla County; Thomas H. Brents Judge.

Hezekiah W. Barnes Was convicted of murder in the first degree, and he appeals. Affirmed.

E. F Barker, Oscar Cain, and E. C. Mills, for appellant.

Otto B Rupp, Herbert C. Bryson, and Thomas Phelps Gose, for the State.

CROW J.

The defendant Hezekiah W. Barnes, having been charged with the crime of murder in the first degree and convicted, judgment and sentence were entered, and he has appealed.

By his first assignment of error appellant contends that his plea of former acquittal should have been sustained, and that he should have been discharged by the trial court. The record shows that on May 22, 1908, an information was filed, charging him with the crime of murder in the first degree; that the case was first called for trial in June, 1908; that on June 13th it was submitted to the jury; that about 10 o'clock a. m. on June 15th the jury were called into court, when the following proceedings were had: 'The Court: Gentlemen, have you agreed upon a verdict? Foreman: Your honor, we fail to agree. The Court What appears to be the difficulty? Foreman: The gentlemen appear to have a difference of opinion. The Court: Do your difficulties arise with regard to the whole case or to some particular branch of it? Foreman: The insanity part. The Court: Do you find beyond a reasonable doubt that the crime was committed by the defendant? Foreman: The crime has been committed. The Court: The question with you is whether the defendant--Foreman: --was sane or insane. The Court: At the time of its commission? Foreman: Yes, sir. * * * The Court: Gentlemen, You may retire, and I will formulate some further instructions in regard to that branch of the case, an try to explain to you what I think possibly you may have overlooked, and will call you in again later. (The jury retire.) Mr. Garrecht [attorney for appellant]: We will ask for an objection to any further instructions, where the jury has not asked for any further instructions. The Court: Call in the jury. (The jury return to the courtroom.) The Court: Gentlemen of the jury, I will ask you whether you wish me to instruct you any further. If not, if you fully understand my former instructions, I will not instruct you any further. The Foreman: I will state, Judge, that the difference of opinion comes up in regard to the incarceration of the prisoner, in the case of insanity, for life--life punishment; whether there's any chance of him being restored to liberty after he is incarcerated for a short time, or whether the committing of the crime will carry with it the life sentence. The Court: I cannot give you what the law is in regard to it now. I have got to give it to you in writing. That is the only point upon which you wish me to instruct you? Foreman: I think, that being solved, we can come to an agreement. With those instructions we are perfectly willing to retire and wait. Mr. Cain [attorney for appellant]: We have no objections to the court's instructing them on that point orally. You can read to them the section of the statute that covers it. The Court: I won't unless I am given full liberty, because I might say something that you might construe into something else. Foreman: We would rather have them in writing. The Court: I can't give them to you to read. I will have to read them to you. (Jury retire. Jury are recalled.) The Court: Gentlemen, as I understand your foreman, you have agreed that the defendant committed the crime charged in the information, but you have not agreed as to whether he was sane or insane at the time of its commission; and I further understand from him that your finding upon that question depends upon whether the defendant can be imprisoned for life or whether he can be discharged at any time. Is that the state of the case? Foreman: That is the case. The Court: And without that knowledge as to whether he can be incarcerated for life or whether he can be discharged at any time, you think that you are unable to agree upon a verdict, and will be unable to agree? You think that there will be no reasonable prospect of an agreement? Foreman: No, sir. The Court: I feel constrained, in view of these statements of yours, to discharge you from further consideration of the case. The fact that you are making your verdict in this case dependent upon the punishment, or what might be done with this defendant after this trial, satisfies me that you should not consider this case at all. It is not a matter for your consideration whether he would be discharged or not discharged. The law is, however, that he, upon certain contingencies, may be discharged at any time after he is restored to sanity, if you should find him to be insane--upon doing certain things, or upon certain things happening, that he could be restored to his liberty. But that ought not to enter into your consideration at all. It has nothing to do with the question of whether he was sane or insane at the time he committed this act. It goes to his punishment; and, in other words, to be plain and curt with you, it is none of your business. It is the business of the law. And I, therefore, seeing that you cannot agree without taking that matter into consideration (which is entirely improper to take into consideration), feel that I would be doing the prisoner and the public both a great injustice to allow you to determine his guilt or innocence upon a question of that kind; and I therefore discharge you from further consideration of the case.' The case was again called for trial on June 24, 1908. The appellant then filed a plea of former jeopardy, in which he claimed that the discharge of the jury amounted to an acquittal. The state answered, the appellant demurred, the demurrer was overruled, and the appellant replied. Upon the second trial it was agreed that the plea of former jeopardy should be submitted to the jury. Two verdicts were returned--one finding the appellant guilty of murder in the first degree, and the other finding that he had not been placed in jeopardy or acquitted.

Appellant concedes that in a criminal case a trial court may, when necessary, discharge a jury that has failed to agree, without effecting an acquittal. He contends, however, that no such necessity arose in this cause, that the discharge was not demanded by imperious necessity, that it was made without his consent, and that it operated as an acquittal, barring further trial. To support this contention he cites the following authorities: McCorkle v. State, 14 Ind 39; State v. Wamire, 16 Ind. 357; Commonwealth v. Fitzpatrick, 121 Pa. 109, 15 A. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757; State v. McKee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499; Conklin v. State, 25 Neb. 784, 41 N.W. 788; People v. Parker, 145 Mich. 488, 108 N.W. 999; Hines v. State, 24 Ohio St. 134; State v. Klauer, 70 Kan. 384, 78 P. 802; State v. Allen, 59 Kan. 758, 54 P. 1060; State v. Reed, 53 Kan. 767, 37 P. 174, 42 Am. St. Rep. 322. These authorities, in so far as they tend to support the appellant's contention, are the outgrowth of the rule, adopted in criminal cases by the early English courts, to the effect that a jury sworn and charged in a case of life or member cannot be discharged by the court or any other, but that they ought to give a verdict. At an early date the courts of this country refused to adopt or follow this rule, but held that, when the jury could not agree on a verdict, the court had discretionary power to discharge them, and that the prisoner might be put on his trial before another jury. Commonwealth v. Purchase, 2 Pick. (Mass.) 521, 13 Am. Dec. 452. There is, however, some conflict of authority in American courts on the question as to whether, on their failure to agree, the discharge of the jury without the consent of the defendant will, in a criminal case, bar another trial. The courts of a few states hold that a bar will result, and the most pertinent cases cited by the appellant are from such courts. Most of the American authorities have announced the rule that the power to discharge the jury is within the sound discretion of the trial judge, and that his exercise of such discretion will not be reviewed by the appellate courts, unless its clear abuse appears. State. v. Costello, 29 Wash. 366, 69 P. 1099; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; In re Allison, 13 Colo. 525, 22 P. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224; State v. Harris, 119 La. 297, 44 So. 22, 11 L. R. A. (N. S.) 178, and note; Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Dreyer v. People, 188 Ill. 40, 58 N.E. 620, 59 N.E. 424, 58 L. R. A. 869; Penn v. State, 36 Tex. Cr. R. 140, 35 S.W. 973; Anderson v. State, 86 Md. 479, 38 A. 937; State v. Crump, 5 Idaho, 166, 47 P. 814; United States v. Jim Lee (D. C.) 123 F. 741; State v. Keerl, 33 Mont. 501, 85 P. 862. In State v. Costello, supra, the jury had deliberated from 1:40 p. m. on Tuesday until 9:30 a. m. on Wednesday, when they were called into court, reported they had not agreed, that there seemed to be no prospect of agreement, and were discharged. This court, in discussing the plea of former jeopardy, interposed on a subsequent trial, said: 'The statute provides (Ballinger's Ann. Codes & St. § 5006 [Pierce's Code, § 620]): 'The jury may be discharged by the court * * * by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.' By this section the lower court is invested with a discretion to discharge a jury after it has been kept together until it satisfactorily...