State v. Stephenson

• Citation: 32 S.E. 305,54 S.C. 234
• Parties: STATE v. STEPHENSON.
• Decision Date: 20 February 1899
• Court: South Carolina Supreme Court

32 S.E. 305

54 S.C. 234

STATE v. STEPHENSON.

Supreme Court of South Carolina

February 20, 1899

Appeal from general sessions circuit court of Kershaw county; George W. Gage, Judge.

J. H Stephenson was indicted and tried for rape, and the jury was dismissed for failure to agree. From an order overruling a plea of former jeopardy interposed at a subsequent trial defendant appeals. Affirmed.

W. D Trantham and E. D. Blakeney, for appellant.

J. Wm Thurmond, for the State.

JONES J.

Appellant was indicted for rape, and the case was submitted to a jury at the February, 1898, term of the court of general sessions for Kershaw county. The jury, after deliberating thereon for some 15 or 16 hours, failed to agree upon a verdict; and the presiding judge, Hon. D. A. Townsend, thereupon discharged the jury and ordered a mistrial. At the ensuing June term, upon his arraignment for trial, appellant interposed the plea of former jeopardy, which was overruled. He now appeals from the order overruling his plea of former jeopardy.

The presiding judge, Hon. G. W. Gage, based his ruling upon the following facts stated in his order: "That late in the day at the February term, at the first week of the term, this case went to the jury. The jury had been in their room some time, and unbidden returned to the box. When asked by the clerk if they had agreed upon a verdict, they declared they had not. When asked by the trial judge if they wanted further instructions, they made no answer. The trial judge ordered them to return to their room. Again, before the adjournment of the court, in the night, the trial judge sent for the jury, and asked them if it was likely they would soon agree upon a verdict. The foreman replied negatively. They were returned to their room for the night. The next morning, at the convening of court, or soon thereafter, the trial judge sent for the jury. They came in court, and they were asked if they had agreed upon a verdict. The reply was, they had not. Thereupon they were discharged, and a mistrial entered." We quote from the order of the circuit judge as follows: "I understand this to be the rule of law: that, after a jury has been charged with the consideration of a case, it cannot be withdrawn from the jury, except from necessity. One of the necessities referred to by law is inability of the jury to agree: that is to say, when a case has been submitted to a jury, if the jury is unable to agree upon a verdict, the necessity of the case requires that the jury be discharged, and a mistrial ordered. There is nothing else to do. That is the necessity. The question here is, when shall that necessity appear, and how shall it appear? Of course, it is a matter in the discretion of the presiding judge; and when I say 'discretion' I mean a wise discretion, --discretion governed by law,--because any other sort of discretion is not as wise discretion, but a dangerous discretion, and one not tolerated by law. But the first question is, how must that necessity appear? It is clear to my mind, if at this time, after being out all night, the jury had come in and said, 'We cannot agree,' the necessity then would have arisen; and it would have appeared, by the best evidence,--by the presence and declaration of the jury,--that they could not agree. But is the presiding judge confined to that degree of necessity? Suppose the jury were to stay out a week, and never said they could not agree; are the hands of the circuit judge tied until the jury themselves tell him they cannot agree, or can be exercise his discretion when it is manifest to him from other sources that the jury cannot agree? Now, that is a delicate question. My own judgment as to the better way to ascertain necessity is to ascertain it from the jury themselves; but, sitting as a trial judge, I do not feel warranted in holding that the declaration of the jury is the only method by which that necessity shall appear. But if, upon a consideration of the case, and upon the length of time the jury have been in, and the fact the jury had been out once themselves, and made the declaration that they had, not agreed upon a verdict, and upon a consideration of the fact that one other return on their own motion would have entitled them to a discharge, nolens volens, by the court, I think the circuit judge had enough to warrant his conclusion that a verdict by the jury was an impossibility, and to justify his discharging them. After coming into court once unbidden, after being asked again if they could agree that night, and the answer being given that they could not, and after being brought into court in the morning, after being out all night, I think there was sufficient in the case to warrant the circuit judge to exercise the legal discretion lodged in him." Appellant contends, upon the facts stated, that Judge Townsend was not authorized to discharge the jury, and that Judge Gage erred in not sustaining the plea of former jeopardy.

This principle of the common law is embodied in section 17, art 1, of our state constitution: "Nor shall any person be subject for the same offence to be twice put in jeopardy...