State v. Chandler

• Decision Date: 29 January 1929
• Citation: 128 Or. 204,274 P. 303
• Parties: STATE v. CHANDLER, ET AL.
• Court: Oregon Supreme Court

274 P. 303

128 Or. 204

STATE v. CHANDLER, ET AL.

Supreme Court of Oregon

January 29, 1929

Department 2.

Appeal from Circuit Court, Multnomah County; Arlie G. Walker, Judge.

Dan Chandler was convicted of assault and robbery, being armed with a dangerous weapon, and he appeals. Reversed and remanded, with directions.

Frank E. Swope and Rex Kimmell, both of Portland for appellant.

Francis T. Wade, Deputy Dist. Atty., of Wasco (Stanley Myers, Dist Atty., of Portland, on the brief), for the State.

BELT J.

The defendant, Dan Chandler, was charged with the crime of assault and robbery, being armed with a dangerous weapon. The cause duly came on for trial on June 28, 1928, and was submitted to a jury for its deliberations at 5:50 p. m. on the following day. Five hours later the trial court, Hon Robert G. Morrow, judge presiding, in the absence of the defendant and his counsel, and without their knowledge or consent, discharged the jury on account of its inability to agree upon a verdict. Neither was the district attorney present. At the time of this order of discharge, the defendant was confined in the county jail.

The cause was again set for trial, and the defendant interposed a plea of former jeopardy "without conviction or acquittal," alleging certain facts relative to the discharge of the jury. He claims that such discharge has the legal effect of an acquittal and is therefore a bar to another prosecution for the same offense. Among other things, it is alleged by defendant that neither he nor his counsel was present in court at the time the jury was discharged. It is also averred: "That there was no extreme, manifest, urgent, or imperious necessity, nor any special cause or reason, whatsoever, for the said discharge of such jury; nor any unforeseen occurrence arising rendering it impossible for a valid verdict to be rendered in said cause and that such jury was wrongfully and irregularly discharged." To this plea of former jeopardy a demurrer was sustained by the court over which Hon. Jacob Kanzler, judge, presided. The trial thereafter proceeded, Hon. Arlie G. Walker, judge presiding, under defendant's plea of "Not guilty," and, upon verdict of the jury, a judgment of conviction was entered against defendant; hence this appeal.

Does the record disclose that defendant, in violation of his constitutional right, has been twice put in jeopardy for the same offense? It is well established in this jurisdiction that jeopardy attached in the first trial when the jury was impaneled and sworn. State v. Steeves, 29 Or. 85, 43 P. 947; Ex parte Tice, 32 Or. 179, 49 P. 1038. How was this jeopardy annulled? If the trial court, in the absence of the defendant, was legally authorized to discharge the jury for its inability to agree, then there is no bar to the prosecution of the action; if, however, the absence of the defendant rendered the discharge of the jury an illegal proceeding, the plea of former jeopardy should have been sustained. In the consideration of this case we are assuming that the trial court exercised its sound legal discretion in determining that the jury were unable to agree upon the verdict. The finding of the trial court on the inability of the jury to agree is, in this state, absolute and conclusive, and cannot be made the basis of a plea of former jeopardy. Relative to this question, this court, in State v. Reinhart, 26 Or. 466, 38 P. 822, said: "There is some diversity of opinion and practise upon this question, but we believe the better view to be that when the jury, after having deliberated upon their verdict such a length of time as the trial court may deem reasonable, shall make known in open court, in the presence of the defendant, their inability to agree, and the court, having in view all the circumstances surrounding the case, and being satisfied with such report, causes a finding to that effect to be entered in the journal, and thereupon discharges the jury, the apparent jeopardy, which the record shows attached when the jury were impaneled, is annulled, and the defendant may again be put on trial for the same offense, and in such case the findings of the trial court are not subject to review by this court, and cannot be questioned on a plea of former jeopardy."

This is the rule in the federal courts. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. Also see 1 Bishop's New Criminal Law, § 1041. However, this discretion should be exercised with caution. As was said by Mr. Justice Story in United States v. Perez, 9 Wheat. 580, 6 L.Ed. 165, and quoted with approval in State v. Shaffer, 23 Or. 555, 32 P. 545: "* * * The power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office."

When a jury is discharged for its inability to agree, trial courts, in entering the order, should be careful that the jeopardy which is attached is affirmatively shown to have been nullified. This can be done by adhering to the form of entry as suggested in State v. Reinhart, supra. In the instant case, the order of discharge of the jury is indeed meager. It does not recite the presence of the defendant nor that the jury reported in open court that it was unable to agree. We are not disposed, however, to decide this case upon the form of the journal entry. We pass to the vital question: Was the action of the court, in the absence of the defendant, unauthorized by law? Was there a failure to annul the jeopardy? Did it amount to an acquittal? If these questions be answered in the affirmative, then it follows that defendant has twice been put in jeopardy for the same offense.

If there is anything fundamental and well established in criminal procedure, it is the right of an accused person, on a felony charge, to be present during all of the trial. The statute, section 1512, Or. L., in mandatory language provides: "If it be a felony, he must be present in person." His presence is essential to the validity of the proceeding. Assuming there was a legal necessity for the discharge of this jury, it could not be done in the absence of the defendant, who at that time was confined in jail. The presence of the accused is not a mere form. It is a sacred and inalienable right which has been won through the struggle of the ages. To hold that a court could arbitrarily and capriciously discharge a jury in the absence of the defendant, on a felony charge, would, indeed, be establishing a dangerous precedent. It is idle to argue that the discharge of the jury would not materially affect the rights of the defendant. Has he no right to be heard? Who can say that he might not have urged some reason which would have influenced the court in the exercise of its discretion? Indeed, we think it reasonable to assume...