State v. Hager

• Decision Date: 10 February 1900
• Parties: STATE v. HAGER.
• Court: Kansas Supreme Court

59 P. 1080

61 Kan. 504

STATE v. HAGER.

Supreme Court of Kansas

February 10, 1900

Syllabus

1. A plea of former jeopardy is a special plea of matter in bar which is not involved under the general issue or plea of not guilty, and therefore it should be heard and determined apart from the main issue. Such plea not being of matter which goes to the question of the innocence of the accused, a hearing upon it is not a jeopardy, and an order sustaining it, and discharging the defendant, may be appealed by the state as a question reserved, and, in the event of a reversal of such order on the state’s appeal, the defendant may be rearrested and held for trial.

2. Where the record of the trial of a criminal case shows that the jury “were absent some time considering of their verdict,” and upon being returned to the jury box the foreman, in reply to an inquiry by the court, stated, in the presence of the remainder of the jury and without dissent by any of them, that there was no probability of their agreeing upon a verdict, and the court thereupon discharged them “because they were unable to agree upon a verdict,” held, that such record does not show an arbitrary or unreasonable exercise of the court’s authority in discharging the jury, but does show facts from which a presumption of a correct exercise of judicial authority arises, and that it will not support a plea of former jeopardy when the defendant is again put upon trial.

Appeal from district court, Jackson county; C. F. Johnson, Judge.

George Hager was indicted for grand larceny. A plea of former jeopardy was sustained, and the state appeals. Reversed.

A. A Godard, Atty. Gen., H. F. Graham, and Hayden & Hayden, for the State.

Crane & Woodburn and J. A. Rokes, for appellee.

OPINION

DOSTER, C. J.

This is an appeal by the state upon a question reserved by it. The defendant in the court below interposed a plea of former jeopardy, which, upon hearing and consideration by the court, was sustained, and an order made for his discharge. The defendant had been informed against for grand larceny. Upon the trial of his case the jury reported they were unable to agree, whereupon they were discharged from further consideration of the case. The action was continued to the next succeeding term, and at that term the defendant filed his plea of former jeopardy. In this plea he alleged that, at the trial of his case the preceding term, "the jury were arbitrarily discharged, without a verdict, from the consideration of the case, and without any sufficient or lawful reason therefor, to which discharge defendant excepted, and, having once been in jeopardy, he cannot again be placed upon trial." The evidence in support of this plea was, of course, the record of the former proceeding. The material portion of the record was as follows: "The said jury retired in charge of a sworn bailiff to consider of their verdict; and, after being absent some time in consideration of their verdict, they were duly returned to the jury box, and the court duly inquired of the foreman whether they had agreed upon a verdict, and was informed by said foreman that they had not. The court then inquired of said foreman, ‘Is there any probability of your doing so?’ and was answered by said foreman, ‘There is not.’ The jury was by the court thereupon discharged from the further consideration of the cause, because they were unable to agree upon a verdict."

We have delayed the determination of the case to give consideration to a question involved in it, but which was not argued by counsel. That question is as to the effect of the defendant’s discharge upon the hearing of his plea of former jeopardy. Can he, in the event of a reversal of this case upon the state’s appeal, be again arrested and held for trial, or was the hearing given him upon his plea of former jeopardy itself a jeopardy, which he may plead in bar when again brought to trial? If the latter should be the case, the question presented to us as to the effect of the discharge of the jury on the first trial would be moot in its nature, and would not be considered by us. State v. Rook, 61 Kan. __, 59 P. 653. The subject, as we now view it, in the light of the authorities, is quite free from doubt, although it did not appear so when first occurring to us. Our conclusion is that a hearing upon a plea of former jeopardy alone is not itself a jeopardy, and a discharge upon such hearing is not an acquittal. Pleas of former acquittal or conviction, or former jeopardy, are special pleas of matter not properly involved under the general issue or plea of not guilty. Such being the case, they should be heard and determined apart from the main issue. Whart. Cr. Pl. § § 419, 420, 429; Bish. New Cr. Proc. § § 799-805. Therefore, a plea of former acquittal, not being of matter involved in the general issue, and not being of matter which goes to the question of guilt or innocence, a judgment sustaining it cannot be in the nature of an acquittal. If such were the case, a judgment against a defendant overruling his plea of former acquittal would be a former conviction, and could be pleaded as autrefois convict to the indictment when again called for trial. Hence the defendant could always escape punishment by pleading a former acquittal to the indictment against him, because, if the plea should be found against him, it would be a former conviction; if in his favor, a former acquittal. For the same reasons a plea of former jeopardy, whether determined one way or the other, cannot be regarded as involving the merits of the case. It does not reach to the question of guilt or innocence, and, if determined in defendant’s...