Sutter v. State

• Decision Date: 27 September 1920
• Docket Number: 21313
• Citation: 179 N.W. 414,105 Neb. 144
• Parties: ARLOWE D. SUTTER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

179 N.W. 414

105 Neb. 144

ARLOWE D. SUTTER v. STATE OF NEBRASKA

No. 21313

Supreme Court of Nebraska

September 27, 1920

ERROR to the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

R. J Greene, for plaintiff in error.

Clarence A. Davis, Attorney General, and C. L. Dort, contra.

DAY, J ALDRICH and FLANSBURG, J. J., not sitting.

OPINION

DAY, J.

Arlowe D. Sutter was convicted in the district court for Lancaster county of murder in the second degree, and, following a recommendation of clemency by the jury, was sentenced to a term of ten years in the penitentiary. He brings the case here for review.

This case was before this court upon a former occasion wherein the judgment of conviction was reversed and the case remanded for further proceedings. Sutter v. State, 102 Neb. 321, 167 N.W. 66. Following the remanding of the case the defendant was placed on trial in November, 1918, and the jury, being unable to agree upon a verdict, was discharged by the court. To this action of the court the defendant duly excepted. Proceeding upon the theory that the discharge of the jury under the circumstances was in legal effect an acquittal, and that he could not again be placed upon trial for the same offense, the defendant filed a motion that he be discharged, which was overruled. Thereupon he obtained leave to withdraw his plea of not guilty, and filed a plea of autrefois acquit, based upon the theory that the discharge of the jury without his consent was in legal effect an acquittal. The issue raised by this plea was submitted to a jury in April, 1919, and a verdict returned adversely to the defendant's contention. Later, defendant was again placed on trial resulting in his conviction, as stated in the outset of this opinion. By proper procedure and timely objections the defendant has preserved the question of his former jeopardy arising out of the proceedings in the November, 1918, trial, and this is the principal point discussed in the brief, as well as upon the oral argument. The record shows that at the November, 1918, trial, the case was submitted to the jury at 4:45 p. m. on November 25, and the jury were discharged on November 27, at about 4:45 p. m. It also appears that by consent of the parties the jury were permitted to discontinue their deliberations from 9:30 p. m. November 25 to 9:30 a. m. November 26; the reason for this interruption not being shown. The rest of the time, save the unavoidable interruption of sleep and meals, was occupied by the jury in their consultation. It will thus be seen that, barring the unavoidable interruptions, the jury had the case under consideration approximately 36 hours. At the expiration of this period the jury reported to the court their inability to arrive at a verdict and were discharged by the court. We do not understand the argument of defendant's counsel to go so far that there may not arise circumstances which would warrant the court in discharging the jury without arriving at a verdict, and that such a discharge would form no basis for a claim of former jeopardy. The argument is rather to the point that the circumstances of the present case did not warrant such action. The prevailing rule upon this subject is to the general effect that there must be some manifest necessity for the discharge of the jury, and to leave the courts to determine in their discretion whether under all of the circumstances of each case such necessity exists, and when such necessity exists a plea of former jeopardy will not prevail on a subsequent trial. 16 C. J. 250, sec. 394, and cases cited. In Thompson v. United States, 155 U.S. 271, 39 L.Ed. 146, 15 S.Ct. 73, the rule is stated as follows: "Courts of justice are invested with authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and a defendant is not thereby twice put in jeopardy, within the meaning of the Fifth amendment to the Constitution of the United States." United States v. Perez, 9 Wheat. (U. S.) 579, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, 35 L.Ed. 968, 12 S.Ct. 171; Logan v. United States, 144 U.S. 263, 36 L.Ed. 429, 12 S.Ct. 617. In many of the states, our own included, the power to discharge the jury is specifically conferred by statute. Section 9126, Rev. St. 1913, provides:

"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 probability 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."

It will be noted that the court is authorized to discharge the jury "after they have been kept so long together that there is no probability of agreeing." The trial court is primarily entrusted with the duty of determining whether there is a probability of the jury reaching a verdict. This question cannot be determined arbitrarily or capriciously, but must be in the exercise of a sound judicial discretion. In State v. Shuchardt, 18 Neb. 454, 25 N.W. 722, the court had under consideration the same question now before us, and it was held:

"The authority of a judge of the district court in the trial of a criminal case to discharge the jury in the event of disagreement, without the consent of the prisoner, can only be exercised after the jury have been in consultation for so long a time that there is no reasonable probability that they will agree."

In that case the jury had been in consultation 11 hours, and it was held that the discharge of the jury under the circumstances was unwarranted, and that the prisoner was entitled to be released. In commenting on this phase of the case, it was said: "It never was intended to permit a court arbitrarily to discharge a jury for disagreement until a sufficient time had elapsed to preclude all reasonable expectation that they will ever agree. The county should not be subjected to the expenses incident to a second trial where there is a reasonable probability that a verdict may be reached on the first, while the accused is entitled as a matter of right to a verdict in his favor, if after a full and careful consideration of all the testimony, and on comparison of views, the jury should find that the charge was not established by the proof."

No hard and fast rule can be laid down as to the length of time a jury in a...