State v. Shaffer

• Decision Date: 07 March 1893
• Citation: 23 Or. 555,32 P. 545
• Parties: STATE v. SHAFFER.
• Court: Oregon Supreme Court

32 P. 545

23 Or. 555

STATE v. SHAFFER.

Supreme Court of Oregon

March 7, 1893

Appeal from circuit court, Josephine county; Lionel R. Webster Judge.

Cyrus Shaffer was indicted for murder in the first degree. He was convicted of murder in the second degree, and appeals. Affirmed.

Smith &amp Colvig, for appellant.

Henry L. Benson, for the State.

LORD C.J.

The defendant was indicted for murder, in the first degree, of one Jacob Moll, to which, upon his arraignment, he pleaded not guilty. A trial was had before a jury, which, being unable to agree upon a verdict, was discharged by the trial court. A second jury was ordered impaneled, and, when the defendant was arraigned before them for trial, his counsel filed a motion to discharge the defendant, on the ground that he had once been in jeopardy for the same offense. The court overruled the motion. Upon the trial the jury found the defendant guilty of murder in the second degree and the court sentenced him to the penitentiary for life. The first error assigned is the overruling of said motion. The record properly discloses the inability of the first jury to agree upon a verdict before they were discharged by the court. The contention is that the trial court had no authority to discharge the first jury sworn in the case, without the consent of the defendant, because of their inability to agree upon a verdict. It is conceded that the court, under section 206, Hill's Code, is authorized to discharge a jury when it satisfactorily appears that there is no probability of their agreement; but it is claimed that, in so far as this section confers such power on the court, it is in conflict with section 12, art. 1, of the constitution, which provides that "no person shall be put in jeopardy twice for the same offense." There is some diversity of opinion and practice in the courts upon this subject. In Com. v. Cook, 6 Serg. & R. 577, it was held that the court, without the consent of the prisoner, had no power to discharge the jury because they had not agreed, and said they could not agree, upon a verdict; and the doctrine of this case was expressly approved in the subsequent case of Com. v. Clue, 3 Rawle, 498. There are some other cases sustaining the same view. But the inability of the jury to agree is now generally regarded as such a necessity as will warrant the discharge of the jury, and such discharge will be no impediment to a second trial for the same offense. Mr. Bishop says that "in England and Ireland, at present, and in the greater part of our states, when a reasonable period for discussion and reflection has been given to the jury, and they have, in open court, declared themselves unable to come to an agreement, and the judge is satisfied of the truth of the declaration, they may be discharged, and the prisoner held to be tried anew." Bishop, Crim.Law, § 1033; Ex parte McLaughlin, 41 Cal. 216. We think the authority conferred by our statute upon courts of justice to discharge a jury from giving a verdict whenever it shall satisfactorily appear, in their opinion, that there is no probability of their agreement, is valid, and sustained by the weight of authority and practice. But "the power," as Mr. Justice Story says, "ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes, and in capital cases, especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. 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 their discretion rests in this, as in other cases, upon the responsibility of the judges, upon their oaths of office." U.S. v. Perez, 9 Wheat. 581.

The next objection is that the court allowed the jury to separate during the trial of the defendant. This is a matter within the discretion of the court, who may permit the jury to separate pending the trial upon properly admonishing them touching their duties. It is expressly provided by our Code that the jury may be kept together, in charge of a proper officer, or may, in the discretion of the court, at any time before the submission of the cause to them, be permitted to separate; but in either case they may be admonished by the court that it is their duty not to converse with any other person, or among themselves, on any subject connected with the trial, or to express any opinion therein until the case is finally submitted to them. Section 198, Hill's Code; Stephens v. People, 19 N.Y. 549.

The next assignment of error is, that the court erred in overruling the objection of the defendant to the dying declarations of the deceased. The ground of the objection is that no sufficient foundation had been laid for their introduction. The rule is well settled that, to render dying declarations admissible evidence, it must appear that they were made by the person injured, under a sense of impending death, and without any expectation or hope of recovery 1 Greenl.Ev. § 158; Rosc.Crim.Ev. 25. The admissibility of dying declarations is always a question for the court, as a preliminary inquiry, to ascertain whether the deceased, at the time of making them, was conscious of his danger, and had given up all hope of recovery. But the courts are strict in requiring that, before admitting them, it shall be made clearly to appear that the declarant was in fact at the time under the sense of impending dissolution, and entertained no hope of recovery. Swisher's Case, 26 Grat. 970; State v. Kilgore, 70 Mo. 553. The circumstances proven in this case before the court come within this rule, and, therefore, the proper foundation was laid for the introduction of the dying declarations.

In the case at bar it appears that the trial court conducted such preliminary inquiry out of the...