State v. Jorgenson

• Citation: 32 P. 1129,3 Idaho 620
• Parties: STATE v. JORGENSON
• Decision Date: 08 April 1893
• Court: United States State Supreme Court of Idaho

32 P. 1129

3 Idaho 620

STATE v. JORGENSON

Supreme Court of Idaho

April 8, 1893

DISCRETION OF COURT TO DISCHARGE JURY THAT CANNOT AGREE.-The discharge of a jury by reason of their inability to agree is entirely within the sound discretion of the court. The supreme court will not reverse a judgment of the court below for an abuse of discretion in discharging the jury unless it is affirmatively shown by the record that there has been such abuse of discretion; without such affirmative showing the presumption of this court is that the jury was properly and legally discharged.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed.

Hawley & Reeves, for Appellant.

This record shows that the defendant was brought into court and a jury of twelve persons were duly and regularly selected tried, and sworn to try the cause; that they heard the evidence and argument and retired to deliberate of their verdict, and were afterward brought into court and stated that they had not agreed on a verdict, and the court discharged them. This, we contend, placed the defendant once in jeopardy, after which he should be granted his liberty and no court had the right to again try him for the same offense, and that a retrial is prohibited under section 13 article 1, of our constitution. (People v. Webb, 38 Cal. 477; People v. Coleman, 4 Cal. 51, 60 Am. Dec. 581; Tyler v. Palmer, 31 Cal. 254.) That the plea of once in jeopardy is abundantly sustained by the proof in this case, and that the defendant could not be legally retried we cite the following authorities: People v. Horn, 70 Cal. 17, 11 P. 470; Wharton's Criminal Pleading and Practice, sec. 517; People v. Soto, 65 Cal. 621, 4 P. 664; People v. Dolm, 4 Am. Crim. Rep. 308; Adams v. State, 4 Am. Crim. Rep. 309; People v. Hunckeler, 48 Cal. 331; Cooley's Constitutional Limitations, p. 399, side p. 326; State v. Ward, 48 Ark. 36, 3 Am. St. Rep. 213, 2 S.W. 191; Hilands v. Commonwealth, 111 Pa. St. 1, 56 Am. Rep. 235, 2 A. 70; State v. Calendine, 8 Iowa, 288. The exercise of the discretion to discharge jury must be made a part of record. (Lee v. State, 26 Ark. 260, 7 Am. Rep. 611; 11 Am. & Eng. Ency. of Law, p. 950; People v. Cage, 48 Cal. 324, 17 Am. Rep. 436.)

Attorney General, for State, files no brief.

MORGAN, J. Huston, C. J., and Sullivan, J., concur.

OPINION

MORGAN, J. (After Stating the Facts).

The first assignment of error is that the evidence does not show, or tend to show, that the crime of grand larceny was committed. In this the court cannot agree with counsel. The evidence is strongly against the defendant, and was properly submitted to the jury; and it was for the latter to determine whether the evidence was, beyond a reasonable doubt, sufficient to work a conviction of the defendant.

The second assignment of error appears to be the main reliance of the counsel. It is that the evidence shows that on the twenty-seventh day of June, 1892, the defendant was placed in jeopardy under this indictment--in other words, because the court discharged the jury to which the cause was first submitted without the express consent of the defendant--claiming, also, that the record of the court must show such express consent, or that the record should show affirmatively the necessity inducing the court to discharge the jury. We are unable to agree with counsel for appellant. The power of the court to discharge the jury is expressly given by the statute (Idaho Rev. Stats., sec. 7905), which says: "Except as provided in the last section, the jury cannot be discharged, after the cause is submitted to them, until they have agreed upon their verdict, unless by consent of both parties, entered on the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." The exercise of this power is discretionary with the court. (Idaho Rev. Stats., sec. 7905; People v. Stock, 1 Idaho 218.) There is no limitation, either by statute or common law, for keeping the jury together. The time is entirely within the discretion of the court. (People v. Stock, supra; People v. Goodwin, 18 Johns. 187, 9 Am. Dec. 203.) In United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165, Justice Story says: "They [the courts] are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances. 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, and such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial." When exercised, in the absence of any affirmative showing to the contrary, the presumption of this court is that it was properly and legally exercised. It must be affirmatively shown that the court has abused this discretion, because this court can reverse a judgment of conviction on that ground. There is no such affirmative showing in this case. We do not think we would be justified in reversing a...