State v. Klauer

• Decision Date: 01 December 1904
• Docket Number: 13,900
• Citation: 70 Kan. 384,78 P. 802
• Parties: THE STATE OF KANSAS v. GEORGE KLAUER
• Court: Kansas Supreme Court

78 P. 802

70 Kan. 384

THE STATE OF KANSAS v. GEORGE KLAUER

No. 13,900

Supreme Court of Kansas

December 1, 1904

Decided July, 1904.

Appeal from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

GEORGE KLAUER was tried in the district court on a complaint originally filed before a justice of the peace in which he was charged in separate counts with fifteen distinct violations of the prohibitory liquor law. The question of his guilt under nine counts was submitted to the jury. After hearing the evidence and instructions from the court the jury retired on Saturday, February 22, to consider their verdict. Not having agreed, they were permitted to separate until Monday morning, February 24. On that day they returned the following verdict:

"We the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant, George Klauer, guilty as charged in the counts of the complaint; not guilty as charged in the first, fourth, ninth, twelfth, thirteenth and fourteenth counts of the complaint; and we are unable to agree as to the tenth, eleventh and fifteenth counts of the complaint.

S.W WILLIS, Foreman."

This verdict was received, but by some oversight no journal entry was made at the time showing anything beyond the mere receipt of the verdict. Afterward, on April 8, 1903, the court caused a journal entry nunc pro tunc to be made, as follows:

"THE STATE OF KANSAS, Plaintiff, v. GEORGE KLAUER, Defendant.

No 3860.

"Now, on this 8th day of April, 1903, it is made to appear to the court that by oversight the entry which was made upon the journal on the 24th day of February, 1902, is not complete and does not fully show the facts as they existed at the time, and is not full enough to show the final disposition of the case at the time by the court, and for the purpose of completing said journal entry and making the same speak the truth in relation to the proceedings had at the time, it is ordered by the court that an entry be now made upon the journal of the court nunc pro tunc, the same to be treated and considered as a part of the journal entry of February 24, 1902, found in journal No. 35, page 575, and to be construed in connection with that journal entry; that so far as there may be any apparent conflict between the entry now ordered to be made and said entry of February 24, this entry now ordered to be made shall control.

"While the jury were still deliberating as to their verdict the court received a communication from them inquiring whether they could return a verdict upon the counts upon which they could agree without being able to agree upon certain other counts in the complaint. After having considered said inquiry, the court, with the assistance of counsel for the state and counsel for the defendant, determined that a verdict could be properly received in which the jury had agreed upon certain counts and were unable to agree upon other counts; and thereupon the jury, while in the box in open court, were advised by the court that such a verdict would be received. Thereafter, the jury, after further deliberation, announced to the court that they had agreed upon a verdict, and they were then brought into open court and the verdict heretofore recorded in the journal was received. At the time of receiving said verdict, and after it had been read in open court, and while the jury were still in the jury-box, defendant's counsel moved the court for the discharge of the defendant, which motion was overruled, to which ruling the defendant excepted at the time.

"At the time said verdict was received the judge of the court was satisfied in his own mind that the jury had been out a sufficient length of time to consider as to their verdict, and that there was no probability that they would agree upon a verdict different from that which was returned, but this conclusion in the mind of the judge of the court existed from the length of time the jury had been engaged in deliberation and from the inquiry the jury had made as hereinafter recited. The court made no investigation or inquiry at the time the jury was brought into court and discharged as to whether they could probably agree or not, and the court made no judicial investigation or determination of the question at that time, and made no finding thereon at the time the jury was discharged.

"It is therefore ordered and adjudged by the court that the jury be and is hereby discharged from the further consideration of this case; that the defendant, George Klauer, is hereby discharged as to the first, fourth, ninth, twelfth, thirteenth and fourteenth counts of the complaint, and that the defendant be held for further trial upon the tenth, eleventh and fifteenth counts of the complaint; that the case be continued for the term, and that the defendant enter into a bond for his appearance at the next term of the court.

"To all of which order, judgment and ruling of the court the defendant, George Klauer, excepts.

Z. T. HAZEN, Judge."

On April 18, 1903, the accused filed a plea in bar to a further prosecution under the tenth, eleventh and fifteenth counts of the complaint, on which he was held for trial when the verdict was received, on the ground that no lawful reason existed for the discharge of the jury, and that he had been once in jeopardy as to the offenses charged in said counts. The court sustained the plea in bar. The state has appealed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

JURY AND JURORS -- Discharge Held an Acquittal -- Case Followed. In a criminal case the jury, after deliberating on their verdict for twenty-four hours, returned with a statement that they were unable to agree, and were discharged. The judge was satisfied in his own mind that they could not agree, but this conclusion was reached from the length of time the jury had been deliberating, and from inquiries made by the jury. The court made no investigation or inquiry before the jury were discharged whether they could agree or not, and no judicial investigation or determination was made at the time and no finding of the necessity for a discharge entered of record. Held, that, within the rule laid down in The State v....