State v. Copeland

• Citation: 65 Mo. 497
• Parties: THE STATE, PLAINTIFF IN ERROR, v. COPELAND.
• Decision Date: 31 October 1877
• Court: Missouri Supreme Court

65 Mo. 497

THE STATE, PLAINTIFF IN ERROR,

v.COPELAND.

Supreme Court of Missouri.

October Term, 1877.

Error to Dent Circuit Court.--HON. V. B. HILL, Judge.

J. L. Smith, Attorney General, for the State, cited State v. Jeffors, 64 Mo. 376; State v. Matrassey, 47 Mo. 295; State v. Newkirk, 49 Mo. 472.

C. C. Bland, for defendant in error.

1. Jeopardy attaches when the traverse jury is empanelled. 1st Bishop's Crim. Law, secs. 658 a,i 658 ib, 659: Commonwealth v. Cook, 6 S. & R. 517; State v. McKee, 1 Bailey 651; Cobia v. State, 16 Ala. 784; McFadden v. Commonwealth, 23 Pa. St. 12; Lee v. State, 26 Ark. 260; Commonwealth v. Tuck, 20 Pick. 356; Clark v. State, 23 Miss. 261; U. S. v. Stenell, 2 Curt. C. C. 153; Rex v. Wade, 1 Moody Brit. Crown Cas. 86; Newsom v. State, 2 Ga. 60; State v. Redmon, 17 Iowa 329, 333; State v. Walker, 261 Ind. 346.

2. The court has the right to discharge the jury for failure to agree, but this fact must be judicially determined. 1 Bishop Crim. Law secs. 668 a, 668 b, 668 c and 669.

3. The discharge of the jury in this case without the consent of defendant and in his absence and without any necessity for their discharge operated as a discharge of the prisoner, and is equivalent to a verdict of not guilty. People v. Ward, 2 Caines 100, 304; Hines v. State, 24 Ohio St. 134; State v. Wilson, 50 Ind. 487; O'Brien v. Commonwealth, 9 Bush. 333; People v. Cage, 48 Cal. 323; Ex. Parte Ruthven 17 Mo. 541.

SHERWOOD, C. J.

The defendant, indicted for murder in the first degree, pleaded in bar of further prosecution that he had been in April, 1874, put upon his trial and in jeopardy, under the indictment, that the jury had retired to consider of their verdict, but that before the jury had made any verdict, before the end of the term, without consent of the defendant, without good cause or reason, without providential interposition, or any other cause which should in law subject the defendant to be again put in jeopardy, the court discharged the jury. A like occurrence, alleged as having taken place under the same indictment in December, 1875, and with a similar result under similar circumstances, was also pleaded in bar. The first trial commenced April 8th, 1867, continued for two days, or until the 10th day of that month, when argument of counsel was heard and it seems the jury retired to consider of their verdict; at any rate the jury came again into court on the 14th day of the month and, “having failed to agree upon a verdict,” were by the court discharged. The second trial began on the 9th day of December, 1875 (at an adjourned term), continued in progress until the 13th of that month when arguments of counsel were heard, which arguments were continued on the 14th day of the month, when it seems the jury retired to consider of their verdict. On the 15th day of the month the jury again came into court, and, making “report that they cannot agree,” were by the court discharged. The last entry announcing the discharge of the jury differs from the first in that it affirmatively asserts the presence of the prisoner. The plea in bar proved successful and the defendant was discharged. The State, after vainly endeavoring to set the order of discharge aside, brings the cause here by writ of error.

1. JEOPARDY: Discharge of Juryfor failure to agree: Criminal Practice.

We regard the ruling mentioned erroneous; and for these reasons: It sufficiently appears that the jury, both in the first and in the second trial were unable to agree, shown as it is by the record recital of the fact in one instance that they “failed to agree upon a verdict,” and in the other that they “report that they cannot agree.” These expressions we must deem as legal equivalents of each other, and each also as expressive, inferentially, of the idea that further detention of the jury was, in the opinion of the court, altogether futile, since their discharge immediately upon the coming in of their report occurs. At the time when the discharge of the first jury occurred, section 19 of the Declaration of Rights of the Constitution of 1865 was in force “that no person after having been once acquitted by a jury, can, for the same offence, be again put in jeopardy of life or liberty; but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had, may in its discretion, discharge the jury and commit or bail the accused for trial at the next term of said court.” The 23d section of our present Bill of Rights, correspondent to the one just quoted, and which was a part of the organic law at the occurrence of the second trial, is eqally broad in the scope of discretionary power which it confers on the trial court. But we are asked on the meager record recitals to which we have adverted to assume that the defendant was put “in jeopardy” within the meaning of the constitution by reason of the discharge of the jury not appearing to have been with the consent of prisoner, and by reason of such discharge occurring without the existence of other circumstances to which the plea makes reference. This is an assumption we are not prepared to make. On the contrary, we must take for granted, in the absence of aught of record in opposition thereto, that the discretion which the constitution manifestly confers, was not unsoundly exercised. If this be true, then it can but follow that the defendant had not been put “ in jeopardy” and that his plea should not have been successful. In the case of the State v. Jeffors, 64 Mo., 376, the record did not show any discharge of the jury, and it was claimed that the prisoner was entitled to his discharge on the ground that he had been once put in jeopardy. But it was there held, after no little examination of authorities, that the motion for the discharge of prisoner was properly overruled. This case rests on more obvious grounds, so far at least as concerns record recitals; for here the inability of the jury to agree is plainly apparent.

2. A WRIT OF ERROR.

Confining ourselves to the case before us and not anticipating what our course would be, should a case arise exhibiting marked manifestations of an abusive exercise of that discretion which the constituton confers on the trial court, we should reverse the judgment and remand the cause, but for the fact that we do not regard the State as possessing any right whatever to come here in this particular case, or indeed in any criminal case, through the medium of a writ of error. Secs. 13 and 15 of article 8, Tit. Prac. Crim. cas. (2 Wagner's stat. 1114) are as follows: Sec. 13. “The State in any criminal prosecution shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeding section.” Sec. 14. “When any indictment is quashed or adjudged insufficient on demurrer, or when judgment thereon is arrested, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney, that there is reasonable ground to believe that the defendant can be convicted of an offense if properly charged, may cause the defendant to be committed or recognized to answer a new indictment, or if the prosecuting attorney prays an appeal to the Supreme Court, the court may in its discretion grant an appeal.” It will thus be readily observed that an appeal is only allowable to the State, 1st, where the indictment is quashed; 2d, where it is held insufficient upon demurrer; 3rd, where the judgment thereon is arrested, and even then the right of appeal is hampered in its exercise by the discretion of the...