State v. Slorah

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: WILSON, J.
• Citation: 106 A. 768
• Parties: STATE v. SLORAH.
• Decision Date: 05 June 1919

106 A. 768

STATE
v.
SLORAH.

Supreme Judicial Court of Maine.

June 5, 1919.

106 A. 769

Exceptions from Supreme Judicial Court, York County, at Law.

John C. Slorah was Indicted for murder, and, his plea of former jeopardy having been overruled, he brings exceptions. Exceptions overruled.

See, also, 117 Me. 319, 104 Atl. 162.

Argued before SPEAR, HANSON, DUNN, MORRILL, WILSON, and DEASY, JJ.

Guy H. Sturgis, Atty. Gen., and Franklin R. Chesley, Co. Atty., of Saco, for the State.

Emery, Waterhouse & Paquin, of Biddeford, for respondent.

WILSON, J. John C. Slorah was indicted for murder in York county at the September term, 1917. At the January term, 1918, being the "next term after the finding of the in dictment," he was placed on trial on his plea of not guilty with a suggestion of insanity. After the impaneling of the jury on motion of the respondent and with the consent of the state a view of the locus of the alleged crime was ordered by the court. Whereupon the jury in charge of an officer, accompanied by the respondent and his counsel and the attorney for the state, visited the home of the respondent, where the homicide was committed. Upon reaching the premises the respondent fell or threw himself down upon the piazza as the jury were about to enter the house, crying out in the presence of the jury: "My God! take me away from here or I shall be insane again." He was then at the suggestion of his counsel removed by the officer in charge of him to a nearby house, while the jury in the absence of the respondent proceeded with counsel for the respondent and for the state to view the premises. On leaving the premises they were joined by the respondent and returned to court.

The court, as the record shows, on account of the incidents happening during the view, as set forth above, the statement of which by counsel in open court was made a part of the record, and upon the ground that they were in the judgment of the court prejudicial to an impartial trial of the respondent before that jury, withdrew the case from the jury, and, deeming it inexpedient to summon a new jury for another trial of the case at the January term, ordered the case continued to the following May term, 1918, and the respondent remanded to jail. To the order of the court continuing the case the respondent excepted, and filed his bill of exceptions, and the case was then transferred to the law docket. This court dismissed the case from the law docket at the June term, 1918, on the ground that the exceptions; were pre maturely brought before the law court. 117 Me. 319, 104 Atl. 162.

At the September term, 1918, the state again moved for trial, and the respondent then filed a motion to quash the indictment on the ground that under section 11 of chapter 136, R. S., he should have been tried at the second term after the finding of the indictment. His motion to quash was overruled, and the respondent thereupon excepted. The respondent then filed a plea of former jeopardy, which was replied to by the state. The court overruled this plea, to which ruling exceptions were also taken by the respondent.

The ease now comes before this court upon the respondent's exceptions: (1) To the order of the court at the January term, 1918, continuing the case to the May term following; (2) to the ruling of the court at the September term denying the motion to quash the indictment; (3) to the ruling of the court finding against the respondent on his plea of former jeopardy.

We will consider the exceptions in their order. We must overrule the respondent's exception to the order of the court continuing the case to the May term. The respondent relies, in support of this exception, on section 6 of article 1 of the Constitution of our state, entitling him to a speedy trial; on section 11 of chapter 136, R. S., which provides that any person in prison under indictment shall be tried or bailed at the "next term after the finding thereof, if he demands it," and on section 25, c. 136, R. S., which provides that the trial of any criminal case, except for a crime punishable by imprisonment for life, may be postponed by the court to a future day of the same term, or the jury discharged therefrom and the case continued if justice will thereby be promoted.

The exception of capital cases from the provisions of section 25, c. 136, simply leaves such cases, we think, subject to the common law as to continuances, and does not, as contended by respondent, preclude by implication a continuance in any event of cases in which the offense charged is punishable by imprisonment for life. Such cases may be continued in the discretion of the court subject to the provisions of section 11 of chapter 136 and section 6 of article 1 of the Constitution. Com. v. Drake, 124 Mass. 21; Com. v. Donovan, 99 Mass. 425, 96 Am. Dec. 765; 12 Cyc. 898, and cases cited.

Section 11 of chapter 136, R. S., was designed to carry out the general provisions of the Constitution guaranteeing a "speedy trial." Since it must be inferred, we think, from the language of the statute, that a trial at the second term after the finding of the indictment complies with the constitutional provision guaranteeing a speedy trial, unless a trial is demanded by the respondent at the first term; and, since we are of the opinion that the presiding justice was warranted in

106 A. 770

withdrawing the case from the jury, the record disclosing no demand by the respondent for further trial at the January term, nor any request that he be admitted to bail, we think the presiding justice did not exceed his discretionary powers in continuing the case to the May term, which we hold to be the second term after the finding of the indictment. Stewart v. State, 13 Ark. 720; Ochs v. People, 124 Ill. 399, 16 N. E. 662. We cannot read into the statute that silence on the part of the respondent, even in a capital case, shall constitute a demand for trial or a request for bail.

As to the exception to the ruling of the court denying the motion to quash the indictment, we must also overrule the exception. The reason assigned as the basis for the motion is that the respondent, though indicted for a felony, was not tried at the second term after the finding of the indictment, i. e., at the May term, 1918. It appears that the reason for the failure to place the respondent on trial at that term was his own act in presenting prematurely to the law court his exceptions to the court's order continuing the case from the January term. The right to a speedy trial and to a trial at the second term after the finding of an indictment for a felony is a personal privilege which, we think, a respondent may be held to have waived even in a capital case. We hold that the respondent in this case by his acts in having the case transferred to the law docket, thereby causing the delay, must be held to have waived his rights under section 11 of chapter 136, R. S., to a trial at the May term. The question of waiver in capital cases we shall discuss later, but see State v. Steen, 115 Mo. 474, 22 S. W. 461; State v. Marshall, 115 Mo. 383, 22 S. W. 452; Moreland v. Georgia, 51 Ga. 192; Com. v. Zec, 262 Pa. 272, 105 Atl. 279, 281; Bish. New Crim. Law, vol. 1, § 951, d; 12 Cyc. 500, f; People v. Fitzgerald, 137 Cal. 546, 550, 551, 70 Pac. 554; People v. Hawkins, 127 Cal. 374, 59 Pac. 697; State v. Sasse, 72 Wis. 4, 38 N. W. 343; State v. Suber, 89 S. C. 100, 103, 71 S. E. 466; Shular v. State, 105 Ind. 299, 4 N. E. 870, 55 Am. Rep. 211.

We now come to the exception to the ruling of the court against the respondent's plea of former jeopardy, which is by far the most important. No question as to procedure having been raised, we assume by consent of parties it was submitted to the court upon the facts stated in the plea and replication, and the court in overruling the plea held as a matter of law upon the facts stated that, if jeopardy had begun at the January term, it was nullified by the subsequent proceedings. Com. v. McCauley, 105 Mass. 69.

The respondent urges in support of his exceptions as a matter of law that jeopardy began when the jury was impaneled and sworn at the January term, and that, when jeopardy has one attached, he was entitled to a verdict from the jury of either guilty or acquittal; that, if the case was withdrawn by the court from the jury without his consent, except for what has been termed by the courts, urgent, manifest or imperious necessity, he should be discharged and may plead former jeopardy, if placed on trial again on the same indictment or for the same offense. Such we hold to be the law. 1 Bish., New Crim. Law, § 1016; Cooley's Cons. Lim. p. 339 (6th Ed.); State v. Hansford, 76 Kan. 678, 682, 92 Pac. 551, 14 L. R. A. (N. S.) 548; Mitchell v. State, 42 Ohio St. 383, 395, 396; State v. Richardson, 47 S. C. 166, 172, 25 S. E. 220, 35 L. R. A. 238; People v. Warden, 202 N. Y. 138, 151, 95 N. E. 729.

This leads us to inquire: First, was the respondent in jeopardy at the January term, 1918; second, if so, does any such manifest necessity appear from the record as to warrant the act of the presiding justice in withdrawing the case from the jury, and thereby nullifying the jeopardy so that it formed no bar to his trial at the September term.

Of the first there can be no question. Practically all authorities, with but few exceptions, agree that jeopardy begins when a respondent is put upon trial before a court of competent jurisdiction, upon an indictment sufficient in form and substance to sustain a conviction, and the jury has been charged with his deliverance. The jury is said to be charged with his deliverance when they have been impaneled and sworn. Cooley's Cons. Lim. (6th Ed.), p. 399; Bish. New Crim. Law, vol. 1, §§ 1014, 1015. Does the record disclose conditions creating what has been termed by the courts a manifest, urgent necessity, such as warranted the presiding justice in withdrawing the case from the jury and...