State v. Costello

• Decision Date: 08 August 1902
• Citation: 29 Wash. 366,69 P. 1099
• Parties: STATE v. COSTELLO.
• Court: Washington Supreme Court

69 P. 1099

29 Wash. 366

STATE v. COSTELLO.

Supreme Court of Washington

August 8, 1902

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Edward Costello was convicted of assault with intent to rob, and the appeals. Affirmed.

James Taylor Rogers, for appellant.

J. E Horan, for the State.

MOUNT J.

Appellant and one F. J. Fenton were charged in the court below with the crime of assault with intent to rob one Oscar Combs. Appellant demanded a separate trial, which was granted him. At the first trial the jury disagreed, and were discharged. Upon a retrial appellant was convicted, and from the judgment and sentence this appeal is taken.

1. When the case was called for retrial the defendant offered a plea of once in jeopardy, basing this plea upon the fact that the court had erroneously discharged the jury in the former trial. The court denied this plea. This ruling is assigned as error. It appears from the record of the first trial that the jury retired to consider their verdict on Tuesday, November 19th, at 1:40 p. m. Thereafter, on Wednesday, November 20th, at 9:50 a. m., the jury was called into court, whereupon the following proceedings were had: The judge, addressing the jury, said, 'Gentlemen, have you agreed upon a verdict?' To which Juror Coe replied 'No.' The judge then said, 'Is there any prospect of an agreement?' To which Juror Coe answered, 'It seems not,' and another juror added, 'We have stood one way for twelve hours.' The court thereupon discharged the jury. No objection was made thereto. The clerk made the following entry in his journal: 'Jury brought into court room after being out all night without having reached a verdict, was discharged from further consideration of the case, and discharged for the day.' It is no doubt the rule that an improper discharge of a jury is in effect an acquittal of a defendant on trial charged with a crime. 1 Bish. New Cr. Law, §§ 992-1013; 1 Bish. Cr. Proc. § 821; State v. Hubbell, 18 Wash. 482, 51 P. 1039. It is necessary to consider, therefore, whether or not the discharge of the jury under the circumstances in this case was proper.

The statute provides (section 5006, Ballinger's Ann. Codes &amp St.), '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 appears that there is no probability of their agreeing. This discretion must be based upon substantial grounds, and is subject to review like any other legal discretion. It appears here that the jury had been considering the case for more than 19 hours, and, when asked by the court if there was any prospect for an agreement, answered, 'It seems not,' and stated, 'We have stood one way for twelve hours.' While in the question put by the court the word 'probability' is not used, still we think the question and the answer clearly indicate that there was no reasonable probability of an agreement, and that, under the conditions existing, the court did not abuse his discretion in discharging the jury. In Penn v. State, 36 Tex. Cr. R. 140, 35 S.W. 973, it was said: 'It is within the discretion of the court to discharge the jury and put an end to the trial, and the case will not be reversed on account of the action of the court in this regard unless there is a clear abuse of discretion.' In the case of People v. Goodwin, 18 Johns. 187, 9 Am. Dec. 203, the court said: 'I am of the opinion that although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in cases of extreme and absolute necessity, and that it may be exercised without operating as an acquittal of the defendant; that it extends as well to felonies as misdemeanors; and that it exists, and may discreetly be exercised, in cases where the jury, from the length of time they have been considering a cause, and their inability to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion.' In Logan v. U. S., 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, the court says: 'The plea of former jeopardy was rightly held bad. It averred that the discharge of the jury at the former trial without the defendants' consent was by the court, of its motion, and after the jury, having been in retirement to consider their verdict for forty hours, had announced in open court that they were unable to agree as to these defendants. The further averment that 'there existed in law or fact no emergency or hurry for the discharge of said jury, nor was said discharge demanded for the ends of public justice,' is an allegation, not so much of specific and traversable fact, as an inference and opinion, which cannot control the effect of the facts previously alleged. Upon those facts, whether the discharge of the jury was manifestly necessary, in order to prevent a defeat of the ends of public justice, was a question to be finally decided by the presiding judge in the sound exercise of his discretion.' See, also, Whart. Cr. Pl. & Prac. § 499 et seq.; U.S. v. Perez, 9 Wheat. 579, 6 L.Ed. 165; People v. Shotwell, 27 Cal. 394; In re Allison, 13 Colo. 525, 22 P. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224; Williford v. State, 23 Ga. 1; Lovett v. State, 80 Ga. 255, 4 S.E. 912; Jones v. Com., 86 Va. 740, 10 S.E. 1004.

2. During the trial the court permitted the prosecutor to introduce in evidence a short piece of garden hose which was filled with sand, and which was found the next morning after the alleged assault near where the assault occurred, and in the direction the assailant had fled immediately after the assault. This evidence was objected to because the piece of hose was not traced to the possession of the defendant. The person who committed the assault was unknown to the prosecuting witness, and was not seen by him, and no one testified to seeing the defendant with this piece of hose. The only evidence connecting defendant with the crime was circumstantial. The evidence shows that the defendant, at about the time the crime was committed, was in the immediate vicinity, that this piece of hose, sometime during the night on which the crime was committed, was cut from a garden hose hanging on a fence near by, and that the wound on the head of the prosecuting witness was such a wound as would be made by a blow from such an instrument. We think the evidence was proper to go to the jury as a circumstance in the case.

3. While the defendant's attorney...