Stocks v. State

• Decision Date: 26 July 1893
• Parties: STOCKS v. STATE.
• Court: Georgia Supreme Court

18 S.E. 847

91 Ga. 831

STOCKS v. STATE.

Supreme Court of Georgia

July 26, 1893

Syllabus by the Court.

When during the trial of a capital case, the mother of a juror died, it was not improper for the court to inform the juror of the fact, and to discharge him from further service in the case; and, after so doing, there was no error in declaring a mistrial, nor in overruling, at a subsequent trial, a plea of former jeopardy, based on these facts. It is immaterial whether the accused did or did not consent to the juror's being informed of his mother's death, or to the mistrial the emergency authorizing the discharge of the juror, and thus ending the trial, being of a nature similar to one which would arise upon the serious sicknes of a juror or of the presiding judge, or sickness in the family of either requiring his personal care and attention, or from other cause which should be recognized as affording in law a sufficient necessity to warrant such action by the trial court. Bleckley, C.J., dissenting.

Error from superior court, Fulton county; R. H. Clark, Judge.

Porter Stocks was convicted of murder, and brings error. Affirmed.

Arnold & Arnold and Glenn & Slaton, for plaintiff in error.

C. D. Hill, Sol. Gen., and W. C. Glenn, for the State.

SIMMONS J.

It was a principle of the common law, announced by Blackstone to be "a universal maxim," that "no man is to be brought into jeopardy of his life more than once for the same offense." 4 Bl. Comm. 335. This principle was embodied in the constitution of the United States by the fifth amendment, and similar provisions exist in nearly, if not all, the states of the Union. In view of this principle, it became important, in the early days of English jurisprudence, to know when an accused person had, in a legal sense, been put in jeopardy. Some of the courts in England held that after a jury had been impaneled and sworn, and charged with the case, they must return a verdict, and if, for any reason, they did not do so, the accused could not be again put on trial. Coke, in 1 Inst. 227b, says that "a jury sworn and charged in a case of life and member cannot be discharged by the court, but they ought to give a verdict;" and in 3 Inst. 110: "If any person be indicted for treason or of any felony or larceny, and thereupon a jury is returned and sworn, their verdict must be heard, and they cannot be discharged." The rule admitted of no exceptions, not even in case of the sickness or death of the prisoner or of a juror. Accordingly, we read of juries being carried from county to county in carts, in order that they might return a verdict before being discharged. The rule was so arbitrary, and the proceedings attendant upon it were so inconvenient and inhuman, that exceptions were, in the course of time, established. So we read in the leading case of King v. Scalbert, 2 Leach, 620, that, during the trial of the prisoner for murder, one of the jurors was seized with a fit, and carried from the court in an insensible state. A juror who examined him reported under oath that he thought he would not be able to attend the trial immediately. The jury were thereupon discharged, and another jury sworn, consisting of the former eleven and an additional one, and the prisoner was convicted. This case was followed and approved by all the judges, 18 years afterwards, in Rex v. Edwards, 3 Camp. 207; and the exception thus established is now recognized by all the courts, both in England and in this country. See 1 Lead. Crim. Cas. (Bennett's Notes,) 466. An exception to the rule was also made where the prisoner became ill during the trial. See the Case of Meadow, Fost. 76, which is the earliest case holding that a jury could be discharged on this account; and see King v. Stevenson, 2 Leach, 546. To these exceptions were added others, of a different character. Failure of the jury to agree upon a verdict before the expiration of the term of the court was eventually recognized as a sufficient ground for then discharging the jury, without the consent of the prisoner, and without prejudice to the further prosecution of the case. The contrary was held in two early cases in this country. Spier's Case, 1 Dev. 491, and State v. Garrigues, 1 Hayw. (N. C.) 241. But these cases were not followed, and it is now universally conceded that such an occurrence presents a case of legal necessity. Then came the exception which allowed the discharge of the jury before the end of the term, without the prisoner's consent, when it appeared to the court that they were unable to agree upon a verdict. On this point there was great conflict among the courts in this country, a number of very respectable courts holding that nothing short of the illness of the prisoner or of one of the jury, or like physical necessity, would authorize the discharge of the jury without the consent of the prisoner; but the better opinion now seems to prevail that the court has the power to discharge them, after they have been out a sufficient length of time, and it appears that they are unable to agree. Another exception was that made in the case of Nugent v. State, (1833,) 4 Stew. & P. 72, where it was held that the sickness of the presiding judge was a sufficient ground for discharging the jury. This exception, so far as I have been able to ascertain, is now universally recognized by courts and text writers. In the case of State v. Wiseman, 68 N.C. 203, it appeared on the trial of the defendant for murder that one of the jurors had fraudulently procured himself to be put on the jury for the purpose of acquitting the accused. The judge withdrew the juror, and declared a mistrial. The supreme court, on appeal, held that this was proper, and that the defendant could be again placed on trial, and that this was so whether he was cognizant of the fraud or not. The discharge of the jury under these circumstances was placed on the ground of "legal necessity," or what was denominated "the necessity of doing justice." In the case of Simmons v. U.S. , 142 U.S. 148, 12 S.Ct. 171, it was held that "when it is made to appear to the court during the trial of a criminal case, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors, or any of them, are subject to such bias or prejudice as not to stand impartial between the government and the accused, the jury may be discharged, and the defendant put on trial by another jury; and the defendant put on trial by another jury; and the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States."

The foregoing instances are given more for the purpose of showing that the courts are not limited to exceptions already made than because of any direct bearing those mentioned may have upon the case now in hand. All of these exceptions were founded upon the doctrine of necessity; but, in deciding as to what constitutes a necessity; the courts, as we have seen, have not been governed by an inflexible standard, and have not felt bound to confine themselves to physical or absolute necessity, but have extended the doctrine as the ends of justice seemed to require. The tendency, as was said by this court in the case of Nolan v. State, 55 Ga. 524, "has been to lower the standard so as to comprehend moral as well...