State v. Helm

• Decision Date: 11 August 1949
• Docket Number: 3530.
• Citation: 209 P.2d 187,66 Nev. 286
• Parties: STATE v. HELM.
• Court: Nevada Supreme Court

209 P.2d 187

66 Nev. 286

STATE v. HELM.

No. 3530.

Supreme Court of Nevada

August 11, 1949

Rehearing Denied Nov. 3, 1949.

Appeal from Eighth Judicial District Court, Clark County; A. S Henderson, Judge.

Clifford Duane Helm was convicted of first-degree murder and from the judgment of conviction and from an order denying his motion for new trial, he appeals.

Judgment and order affirmed.

Gordon W. Rice, of Reno, Leo A. McNamee, G. William Coulthard and Taylor & Gubler, all of Las Vegas, for appellant.

Alan Bible, Attorney General, Geo. P. Annand and Homer Mooney Deputy Attorneys General, Robert E. Jones, District Attorney A. W. Ham, Jr. and Roger D. Foley, Deputy District Attorneys, Las Vegas, for respondent.

HATTON District Judge.

Clifford Duane Helm, the defendant below, is the appellant here. He will be referred to herein as the defendant.

The defendant was charged with the murder of one Frank Ferroni, Jr., also known as John Beasley, in an Information filed by the district attorney of Clark County, Nevada, on March 27th, 1947, to which he, on April 16th, 1947, entered his plea of not guilty. On June 2nd, 1947, the impaneling of the jury began, the information was read to the prospective jurors, and the impaneling proceeded to the point where the state and the defendant entered upon the exercising of their peremptory challenges, the defendant passed his third, fourth and fifth peremptory challenges. Then, with the twelve jurors in the box remaining the same as upon the passing of his fifth peremptory challenge, his counsel asked leave to exercise his sixth peremptory challenge, by challenging one Robinson, which request the trial judge refused to grant, and to which ruling the defendant excepted. The jury were then sworn to try the cause, the Information was read by the clerk, and the plea stated, and the district attorney made his opening statement. The court then recessed to the following day, when the trial was resumed. Immediately upon the resumption of the trial, the trial judge stated his opinion that he had erred on the previous day in refusing to allow the defendant to exercise his sixth peremptory challenge, and stated that he would declare a mistrial unless the parties accepted the jury. Defendant's counsel stated that he would stand on the record, and was unwilling to accept the jury except upon the conditions as shown by the record. He neither specifically consented nor objected to the discharge of the jury. The court then declared a mistrial, and dismissed the jury. The trial of the case was reset for September 15th, 1947. On that date, the defendant applied for leave to withdraw his plea of not guilty and substitute a plea, in writing, of once in jeopardy and asking for his discharge, which application was refused by the court. The defendant, however, was allowed to file his said plea of once in jeopardy. The trial was then proceeded with, and resulted in a verdict of guilty of murder of the first degree, the punishment being fixed at life imprisonment.

The first alleged error assigned and discussed in the briefs is that the trial court erred in denying the defendant's plea of once in jeopardy.

Upon the authority of the case of State v. Pritchard, 15 Nev. 74, it is clear that the court erred in refusing to allow the defendant to exercise his sixth peremptory challenge, and that a verdict of guilty upon a trial before the jurors then in the jury box would have been set aside on appeal to this court. The question arises as to whether or not the defendant had already suffered a prior jeopardy when he was brought to trial on September 15th, 1947.

The subject of prior jeopardy was before this court in the case of Ex parte Maxwell, 11 Nev. 428. In that case the jury had failed to agree on a verdict, and were dismissed without a determination by the court, on the record, of the grounds for such dismissal, and it was held that, in the absence of such determination, prior jeopardy was shown. In the opinion in the Maxwell case the following statements appear:

'Although there still exists some conflict and confusion in the opinion of judges upon this question, the rule now seems to be pretty well settled in the American courts that whenever the accused has been placed upon trial, upon a valid indictment, before a competent court, and a jury duly impaneled, sworn and charged with the case, he has then reached the jeopardy, from the repetition of which this constitutional provision protects him.

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'Bishop, in his treatise on criminal law, after an elaborate review of the authorities, and a discussion of the whole subject says: 'The better view of this whole question may be stated as follows: Whenever a trial has commenced whether for misdemeanor or felony [and] the judge discovers any imperfection which will render a verdict against the defendant either void or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of any future proceedings.'

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'In other words, when the record shows an actual jeopardy to have taken place against the defendant, he is protected thereby from further peril for the alleged offense. But where the record shows also matters disproving the peril, it does not show the peril, whatever else it shows, and therefore it does not protect him.'

In the later edition of the work referred to Bishop's New Criminal Law, Vol. 1, p. 622, the author adds: 'Then, the prima facie jeopardy appearing of record, matter nullifying it will also appear, and the defendant will be properly held for further proceedings.'

[66 Nev. 292] At page 623 the author states: 'If, after the trial has commenced, a juror is discovered to have been insufficiently sworn, or to be insane, or not of the panel, or from any other cause incompetent, he may be discharged or the error corrected otherwise without entitling the prisoner to go free. Some state the rule to be that anything discovered in a juror showing him not to be a proper one to sit in the case will work this result. But the better form of the doctrine is that the matter must be such as the defendant can make ground for a new trial if the verdict is against him.'

It is shown, on the record in this case, that the jury above referred to was never duly, or legally, impaneled. We therefore conclude that the defendant's abortive trial before that jury was not attended with jeopardy or peril of a legal conviction, and we must decide that the trial court did not err in denying the defendant's plea of once in jeopardy.

The defendant contends that the first jury was discharged without such necessity as the law recognizes as legally sufficient, and that hence its discharge was equivalent to his acquittal. The authorities quoted from above support the view that there was presented to the trial court, in the present case, a necessity for the discharge of the jury, which necessity was both manifest and over-ruling. The American cases hold generally that the determining of such necessity lies in the discretion of the trial court upon a consideration of all of the circumstances of the case. 22 C.J.S., Criminal Law, § 258, page 394. In the present case, the court could either have proceeded with the trial knowing that the judicial machinery was legally defective and that a verdict of guilty would be set aside by this court on appeal, or the trial judge could declare a mistrial and begin anew. We regard it as clear that the ends of public justice demanded the latter course.

In the case of Thompson v. U. S., 1894, 155 U.S. 271, 15 S.Ct. 73, 74, 39 L.Ed. 146, the Supreme Court of the United States considered and passed upon a case similar to the one presented here. In that case, after the jury was sworn and the trial was proceeding, the fact that one of the jurors was disqualified, by having been a member of the grand jury that found the indictment, became known to the court. Thereupon the court, without the consent of the defendant and under exception, discharged the jury and ordered a new trial. The defendant pleaded once in jeopardy, and the supreme court, in holding that no jeopardy had attached, said: 'As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing U.S. v. Perez, 9 Wheat. 579 [22 U.S. 579, 6 L.Ed. 165]; Simmons v. U. S., 142 U.S. 148, 12 S.Ct. 171, , and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, . Those cases clearly establish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy within the meaning of the fifth amendment to the constitution of the United States.'

As late as April 25, 1949, that high tribunal refused to adopt a formula 'inconsistent with the guiding principles of the Perez decision to which we adhere.' Continuing, the court said: 'Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account' and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances, without injury to defendants or to the public interest.' Wade v. Hunter, 1948, 336 U.S. 684, 69 S.Ct. 834, 838.

The American Law Institute, after several years of study of the authorities on this subject, adopted the following rule: 'Sec. 7. Discharge of Jury--effect of. If during the trial of a person for an...