United States v. Giles

• Decision Date: 15 June 1937
• Docket Number: No. 11619.,11619.
• Citation: 19 F. Supp. 1009
• Parties: UNITED STATES v. GILES et al.
• Court: U.S. District Court — Western District of Oklahoma

19 F. Supp. 1009

UNITED STATES v. GILES et al.

No. 11619.

District Court, W. D. Oklahoma.

June 15, 1937.

Brien McMahon, Asst. Atty. Gen., Dan M. Jackson, Sp. Asst. to Atty. Gen., W. C. Lewis, U. S. Atty., Western District of Oklahoma, of Oklahoma City, Okl., Edna Clary Clark, Asst. U. S. Atty., and Walter E. Gallagher, Sp. Atty., of Washington, D. C., for plaintiff.

Dudley, Hyde, Duvall & Dudley, of Oklahoma City, Okl., for defendants.

SYMES, District Judge.

We have for decision the joint and several motion of the defendants for their release and discharge, and plea of former jeopardy and bar; both grounded upon the same facts and one question of law. The four defendants were indicted in the Western District of Oklahoma for conspiracy to defraud the United States of large sums of money by the corrupt administration of the Federal Emergency Relief Act of 1933, as amended February 15, 1934, 15 U.S.C. A. § 721 et seq. The defendant Giles was Federal Emergency Relief Administrator for Oklahoma. Isom was purchasing clerk appointed by Giles. Hoover and Bigley were bidders desirous of selling horses and mules to the Oklahoma Emergency Relief Administration.

The defendants each pleaded not guilty and the cause came on for trial at Oklahoma City on May 26, 1936. A jury was duly impaneled and sworn. The government completed its testimony and rested. The defendants began the introduction of their testimony, but had not finished when court recessed on the evening of June 1st. During that day the trial judge, in open court and in the presence of the jury, made statements about the alleged extravagance and waste of federal relief funds and according to counsel, questioned the good faith of the prosecution, calling attention to other alleged similar transactions by many citizens of Oklahoma, whom he stated the government had not seen fit to prosecute. The remarks of the court were given wide publicity and extravagantly commented upon by the local newspapers, published the evening of the 1st and the morning of the 2d of June.

On the convening of court on the morning of June 2, 1936, the trial judge stated his remarks of the previous day were not justified, nor was the construction which the press had placed upon them justified; that he had gone further in his remarks than the circumstances warranted, and "I can see where the remarks of the court might be exceedingly prejudicial to the defendants in this case. I can see where they could be extremely prejudicial to the Government." And over objections of the defendants and each of them, he declared a mistrial and discharged the jury. An order having been made assigning the case for a new trial on June 7, 1937, upon the same indictment, the defendants filed these motions claiming that the proceedings so far had constituted jeopardy and that they could not be retried on the same indictment.

The plea of former jeopardy is of ancient origin. Blackstone in his Commentaries, Vol. 4, p. 315, Sharwood's Edition, states it thus: "If a person has been found guilty of manslaughter on an indictment and has had benefit of clergy and suffered the judgment of the law, he cannot afterwards be appealed." Nemo bis punitur pro eodem delicto, 2 Hawkins' Pleas of the Crown, 377. Or as Coke has it, Nemo debet bis puniri pro uno delicto, no one can be twice punished for the same crime or misdemeanor. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872. So to every indictment or information charging a crime, whether at common law or statute, a plea of autrefois acquit or autrefois convict is a good defense. Ex parte Lange, supra. This maxim, according to Bishop on Criminal Law (9th Ed.) Vol. 1, p. 729, was not fundamental but a matter of practice in England and the purpose of the rule seems to have been, originally at least, the prevention of double punishment for the same offense, rather than to bar a second trial. In this country it is fundamental and a part of our Constitution.

"* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U. S. Constitution, Fifth Amendment.

According to a well-considered early Connecticut case, it "Is based on the truth that a judicial proceeding lawfully carried on to its conclusion by a final judgment puts the seal of finality on the controversies determined by that judgment, and is not based on a theory that a person accused of crime has any natural right of exemption from those regulations of a judicial proceeding which the state deems necessary to make sure that the conduct and final result of that proceeding shall be in accordance with law." State v. Lee, 65 Conn. 265, at page 273, 30 A. 1110, 1111, 27 L.R. A. 498, 48 Am.St.Rep. 202.

And as Justice Holmes said (dissenting opinion in Kepner v. United States, 195 U.S. 100, at page 134, 24 S.Ct. 797, 806, 49 L.Ed. 114, 1 Ann.Cas. 655): "Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case."

The learned justice further observes that a defendant is no more in jeopardy when retried because of a mistake of law in his favor than if retried for a mistake of law that did him harm.

Enough has been said to show that a mere recitation of the rule is not helpful in a given case unless we explore the reasons back of it and the numerous exceptions, some of which have been recited. Our precise query arises from a factual situation apparently never before presented in the federal court. It is: Does the discharge of a jury before verdict by the judge on his own motion, because in the course of the trial he has inadvertently made remarks which he rightly feels could be extremely prejudicial to the defendants or the government, constitute a former jeopardy? The decisive authority, it would seem, is United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165. The defendant Perez was put upon trial for a capital offense and the jury being unable to agree were discharged without the consent of the prisoner or the government. The prisoner's counsel claimed his discharge as of right and the circuit judges certified the question to the Supreme Court. Mr. Justice Story, after holding that the facts constituted no legal bar to a future trial, made this broad statement since approved by that court in numerous cases: "We think, that in all cases of this nature, the law has invested courts of justice 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. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge."

Agreeable to this authority, numerous exceptions to the rule have been made and are as firmly embodied in the law as the rule itself. Some but not all of the exceptions are cases holding a defendant may be tried a second time if the jury disagrees, United States v. Perez, supra; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734; Logan v. United States, 144 U.S. 263, 12...