Thompson v. United States

Decision Date03 December 1894
Docket NumberNo. 637,637
Citation15 S.Ct. 73,39 L.Ed. 146,155 U.S. 271
CourtU.S. Supreme Court

In the district court of the United States for the Western district of Arkansas, on November 23, 1893, a jury was sworn to try the issue formed between the United States and Thomas Thompson, under an indictment wherein said Thompson was charged with the murder of one Charles Hermes, and to which the accused pleaded not guilty.

After the case had been opened by counsel for the government and the defendant respectively, and after Jacob Hermes, a witness for the government, had been called and examined in chief, the judge stated that it had come to his knowledge that one of the jurors was disqualified to sit on account of having been a member of the grand jury that returned the indictment in the case. The defendant, by his counsel, ob- jected to proceeding further in the trial of the cause with the said juror on account of his incompetency as aforesaid, whereupon the court ordered the discharge of the jury, and that another jury be called, to which action of the court the defendant, by his counsel, at the time excepted.

On November 27, 1893, the defendant filed a plea of former jeopardy, and also a motion for a jury from the body of the district; and it appearing from an examination, in the presence of the defendant, that a number of the regular panel of jurors were disqualified because of opinions formed after having heard part of the evidence, the court ordered the marshal to summon from the bystanders 28 legal voters of the Western district of Arkansas, to be used as talesmen in making up a jury for the trial of the case. On December 1st a motion was filed on behalf of the defendant to quash that part of the panel of jurors consisting of 28 men summoned from bystanders, which motion was overruled, and the petition of the defendant asking for a jury from the body of the district, drawn in the regular manner from the jury box by the jury commissioners, was refused. The government§ attorney then moved that a jury be called for the trial. The defendant objected to the 12 men being called who had been theretofore impaneled for the trial of the cause, which objection the court sustained, and the clerk was ordered to omit in the call the names of said jurors.

Among the jurors called by the clerk were Wilson G. Gray, William M. Perkins, and Isaac B. Sloan, who were members of the regular panel for the present term of the court, and whose names were on the list of jurors served upon defendant at the beginning of the term, and before the first jury in this cause was impaneled, and when the first jury was impaneled these three jurors were by the defendant peremptorily challenged. Their names were not upon the certified list of jurors last served upon the defendant after the first jury had been discharged. The challenge for cause made by defendant to these three jurors was overruled, whereupon the defendant peremptorily challenged them. The defendant likewise filed a written challenge for cause to the 28 men called as talesmen, for the reasons that they did not belong to the regular panel of jurors, that they were not from the body of the district, but were all residents of the city of Ft. Smith, in the immediate neighborhood of the place of trial. This challenge was overruled.

The jury was thereupon sworn, and the trial proceeded with, resulting in a verdict, under the instructions of the court, for the government in the issue formed by the plea of former jeopardy, and in a verdict that the defendant was guilty of murder as charged in the indictment.

Motions for a new trial and in arrest of judgment were overruled, and sentence of death was pronounced against the defendant.

Upon errors alleged in the proceedings of the court, and in the charge to the jury, a writ of error was sued out to this court.

A. H. Garland, for plaintiff in error.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

The record discloses that while the trial was proceeding, a jury having been sworn and a witness examined, the fact that one of the jury was disqualified by having been a member of the grand jury that found the indictment became known to the court. Thereupon the court, without the consent of the defendant, and under exception, discharged the jury, and directed that another jury should be called. The defendant, by his counsel, pleaded that he had been once in jeopardy upon and for the same charge and offense for which he now stood charged. The court permitted this plea to be filed, and submitted the question to the jury, with instructions to find the issue in favor of the government. Such a verdict was accordingly rendered, and the cause was then disposed of under the plea of not guilty, and resulted in a verdict of guilty under the indictment.

The defendant now seeks, in one of his assignments of error, the benefit of the constitutional provision that no person shall be subject for the same offense to be twice put in jeopardy of life and limb.

As the matter of the plea puis darrein continuance, setting out the previous discharge of a jury after having been sworn, and the plea of not guilty, were not inconsistent with each other, it accorded with the rules of criminal pleading that they might stand together, though, of course, it was necessary that the issue under the first plea should be disposed of before the cause was disposed of under the plea of the guilty. Com. v. Merrill, 8 Allen, 545; 1 Bish. Cr. Proc. § 752.

As to the question raised by the plea of fomer jeopardy, it is sufficiently answered by citing U. S. v. Perez, 9 Wheat. 579; Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171; and Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617. Those cases clearly eatablish the law of this court that courts of justice are invested with the 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 that the defendant is not thereby twice put in jeopardy, within the meaning of the fifth amendment to the constitution of the United States.

The evidence in the case substantially disclosed the following facts: The defendant, Thompson, was an Indian boy about 17 years of age, and lived with Sam Haynes, a Creek Indian, who had a farm near Okmulgee, in the Creek Nation. The deceased, Charles Hermes, lived with his father on land rented from Haynes, and distant about half a mile from the house of the latter. There was testimony tending to show ill feeling on the part of Hermes and his sons towards this Indian boy, and that they had threatened to injure him if he came about where they were. Thompson could not speak or understand the English language, but he had been told by Haynes and another witness that old man Hermes had claimed that he, Thompson, had been abusing and killing his hogs, and that if he 'came acting the monkey around him any more he would chop his head open.'

In the afternoon of June 8, 1893, Mrs. Haynes directed the boy to take a bundle to Mrs. Checotale's, who lived two or three miles away. The boy caught a horse, got on it without a saddle, took the bundle that Mrs. Haynes gave him, and went off on his errand. Mrs. Haynes testified that he had no arms of any kind when he left her house, and that he appeared in a good humor with everybody at that time. The road to Checotale's ran by a field where the deceased, his father, and brother were working, plowing corn. There was testimony on the part of Thompson tending to show that as he rode along past the field the old man and the deceased began quarreling with him; that Thompson saw that they were angry with him, but could not understand much that was said to him, although he could tell that they were talking about hogs. Thompson says that he remembered the threats against him they had made to Haynes and Checotale, and thought they were going to hurt him. He further states that he rode on to Checotale's, where he left the bundle; that he got to thinking about what Sam Haynes had told him as to the threats that Hermes had made, and as there was no other road for him to return home by except the one alongside of the field, he thought it was best for him to arm himself, so that he could make a defense in case he was attacked; that he went by Amos Gray's house, and there armed himself with a Winchester rifle belonging to Gray. The defendant further testified that after he got the gun he went back by the road, and as he got opposite where the men were plowing the boys were near the fence, and the old man was behind; that the boys called at him, and said something about a gun, and the deceased started towards a gun that was standing in the corner of the fence, and that, thinking they intended to kill him, he drew his gun, and fired at the deceased, and then ran away on his horse, pursued by the old man, who afterwards shot at him. These particulars of the transaction were principally testified to by Thompson himself, but he was corroborated to some extent by William Baxter and James Gregory, who testified that they visited the field where was the body of the deceased, and that Hermes, the father, described the affair to them, and, as so told, the facts differed but little from Thompson's version.

In this state of facts, or, at all events, with evidence tending to show such, the court instructed the jury at great length in respect to the law of the case. Exception was taken to the charge of the court as a whole, because it was 'prolix, confusing, abstract, argumentative, and misleading,' and this exception is the subject of one of the assignments of error. But we do not need to consider...

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