State v. Schuchardt

• Citation: 25 N.W. 722,18 Neb. 454
• Parties: THE STATE OF NEBRASKA, PLAINTIFF IN ERROR, v. ERNEST SHUCHARDT, DEFENDANT IN ERROR
• Decision Date: 01 December 1885
• Court: Supreme Court of Nebraska

25 N.W. 722

18 Neb. 454

THE STATE OF NEBRASKA, PLAINTIFF IN ERROR, v. ERNEST SHUCHARDT, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 1, 1885

BILL OF EXCEPTIONS filed by district attorney under provisions of Sec. 515, Criminal Code.

AFFIRMED.

Guy R Wilbur and W. F. Bryant, for plaintiff in error.

T. M Franse, for defendant in error.

OPINION

MAXWELL, J.

At the November term of the district court of Cuming county the defendant was indicted for an attempt to kill one John Melder. A plea of not guilty was entered by the defendant and a trial had, the cause being submitted to the jury on Saturday, December 1st, 1883, at about 7 o'clock P.M. About 6 o'clock on Sunday morning the jury reported to the judge that they were unable to agree, whereupon he discharged them, without notice to or the consent of either the defendant or his attorney, and in the absence of both. The journal entry in regard to the disagreement of the jury is as follows:

"And on this 2d day of December, said jury returned into court and reported that they were unable to agree, whereupon said jury were discharged by the court." The defendant filed a plea in abatement, setting up the above facts, and issue was joined thereon, and testimony taken. The court found the issues in favor of the defendant, and discharged him. A writ of error was allowed on the application of the district attorney, and the cause is now submitted to the court. The question for determination is, has the defendant been once in jeopardy? Sec. 485 of the Criminal Code provides that, "in case a jury shall be discharged on account of sickness of a juror, or other accident or calamity requiring their discharge, or after they have been kept so long together that there is no possibility of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge shall be entered upon the journal; and such discharge shall be without prejudice to the prosecution." When a jury is impaneled the state must proceed with the prosecution. There can be no non-suit as in civil actions. If the accused cannot be convicted he is entitled to a verdict of acquittal. And if, after the jury has been sworn and the jeopardy thus begun, the court without sufficient cause discharges them, without a verdict, this in law is equivalent to an acquittal. 1 Bish. Cr. Proc. (3d Ed.), § 821. Wright v. State, 7 Ind. 324. Reese v. State, 8 Ind. 416. Morgan v. State, 13 Ind. 215. People v. Barrett, 2 Caines 304. McCauley v. State, 26 Ala. 135. Poage v. State, 3 Ohio St. 229.

In the case cited last it is said (page 239): "That the power to discharge is a most responsible trust, and to be exercised with great care, is too obvious to require illustration." It is a discretion, said Mr. Justice Story, to be exercised only "under very extraordinary and striking circumstances." 2 Gall. 364. "The power," said the same judge, "ought to be used with greatest caution under urgent circumstances, which would render it proper to interfere." U. S. v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165. "I am of the opinion," said Chief Justice Spencer, "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." People v. Goodwin, 18 Johns. 187. "That the discretion ought to be exercised in cases of mere disagreement only after a long effort of the jury to agree, and when there is no reasonable hope of their doing so, is well settled, and the reasons for the discharge ought to be stated in the record." Id.

In Dobbins v. State, 14 Ohio St. 493, it is said "Counsel for the plaintiff very justly and necessarily concede that a case of necessity may exist which would legally justify the course taken in this instance; but they insist that such a case can only arise when some intervening impediment has necessarily stopped the progress of the first trial before verdict; that the power of discharging a jury in a criminal and especially in a capital case is a delicate and highly responsible trust, to be exercised on account of the disagreement of the jury only when they have deliberated so long as to preclude all reasonable expectation that they will ever agree upon a verdict without being compelled to do so from famine or exhaustion; that this power does not rest upon the arbitrary or uncontrollable discretion of the judge presiding at the trial, but is a legal discretion, to be exercised in conformity with known and established rules; and finally, that unless the facts stated in the record clearly established a case of necessity, the...