56 So. 998 | Ala. | 1911
Section 9 of the Constitution of 1901 embraced all of section 10, art. 1, of the Constitution of 1875 against twice in jeopardy, but in addition thereto provides: “But courts may, for reasons fixed by law, discharge juries from the consideration of the case, and no person shall gain an advantage by reason of such discharge of the jury.” We cannot agree that this change in the organic law was made only to authorize the Legislature to provide by statute for the discharge of juries for the same and only reasons authorizing a discharge under the decisions of this court prior to the last constitutional enactment. To so hold would render the addition to section 9 of the Constitution nugatory, and section 7314 would be a useless enactment. We think that the constitutional change was made to extend the right to discharge juries for causes not then existing and to delegate to the Legislature authority to provide for a mistrial for any reason to be fixed by law. The Legislature did by section 7314, Code 1907, provide for the discharge of juries without the consent of the parties, when in the opinion of the court or judge there is a manifest necessity for the discharge, or when the ends of justice Avould otherwise be defeated, requiring that the reason or cause of discharge shall be entered upon the minutes of the court. The statute conforms to the Constitution and fixes the reasons for a discharge, to wit, when there is a manifest necessity for same, or when the ends of justice would otherAvise be defeated.
The statute does not authorize the trial court to fix the reason for the discharge, but merely authorizes him
The jeopardy relied upon was the unauthorized discharge of the jury. Therefore the plea should have set up the order of discharge or else averred that no order was entered upon the minutes, and, failing to contain this material and important averment, they were subject to the State’s demurrer. While form 7, p. 843, 3 Code 1907, is made sufficient, an examination of same will disclose that the last - blank contemplated that it be filled with the matters and facts constituting a bar to a subsequent prosecution, and the defendant should, therefore, set out an order improperly made or aver that no legal or valid order was made.
This case, however, must be reversed, owing to error in fixing the venire to try the defendant. The order fixed 80 persons to try the case which should have been composed of the regular jurors summoned and a sufficient number to be specially drawn to equal the number fixed. There were over 47 regular jurors summoned, which, with the special number drawn, made only 77, not 80, as required by the order. — Jackson v. State, 171
Two matters are determined on this appeal, viz.: (a) The insufficiency of the pleas of former jeopardy; and (b) that reversible error inhered, as will be stated, in the constitution of the venire to try appellant.
In the conclusion (only) upon the first matter (a) I concur. From the prevailing view in the latter matter I dissent. My opinion, and the reason supporting it, with respect to the pertinent construction of section 9 of the Constitution of 1901, along with Code 1907, § 7314, will be stated after the venire matter has been briefly considered. The prevailing opinion thus points out the error upon which the reversal is rested: “The order fixed 80 persons to try the case, which should have been composed of the regular jurors summoned and a sufficient number to be specially drawn to equal the number fixed. There were only 47 regular jurors summoned, which, with the special number drawn, made only 77 and not 80, as required by the order. — Jackson v. State, 171 Ala. 38, 55 South. 118; Bailey v. State, 122 Ala. 4181 55 South. 601.” Two distinct reasons impel me to the conclusion that no reversal on this point should enter. The first is that by express provision in section 29 of the act approved August 31, 1909 (Acts [Sp. Sess.] 1909, pp. 305-320), the only objection that can be taken to a venire is “fraud in drawing or summoning the jurors,” thereby expressly excluding the objection upon which the reversal is rested. Section 29 reads: “It. is hereby expressly declared to be the intent
Apart from any other factor, it is too evident for doubt that all of section 29 was not considered, or given effect, when the matter was decided upon the reasons given in Jackson’s Appeal. Obviously no due account was taken of the last provision in that section (29), which reads, “And no objection can be taken to any venire of jurors, except for fraud in drawing or summoning the jurors,” because the reason given by the court in Jackson’s Appeal points unerringly and alone to the provisions of the section just preceding that above quoted. Not content with those (preceding) curative provisions, the lawmakers employed the broadest terms to avoid the availability or effect of any other possible objection to the venire except fraud in drawing or summoning the jurors. If section 29 in its entirety only had the effect attributed to- it in Jackson’s Appeal, the Legislature must be held to have needlessly, causelessly, merely reiterated, and
In view of the long recognized, previous practice and heretofore general understanding in this State that a venire folloAving from an erroneous order was subject to quashal on the theory that an erroneous order for a venire could not constitute a valid venire, the distinction taken in the Jackson and Bailey Appeals in this particular is not clear, much less tenable. A necessary consequence is that an aptly grounded motion to quash such a venire Avould merit denial (see Bailey’s Appeal), because not directed to the error, viz., that intervening in the order and not in the product thereof, the venire. So, in order to reach the neAV status, a new system or means must be invented or eAolved, whereby a defendant so desiring may test the sufficiency of the order in this particular, what form that means should have or will take is not indicated, and the writer is inclined to think it will be difficult to be logically supplied. But, in any event, it is hard to conceive of an erroneous legal status that produces immediately an unassailable (except for fraud) result, viz., a venire,'though such seems to be the certain effect of the rulings in the Jackson
In Thomas’ Case, 94 Ala. 7b, 75, 10 South. 432, treating a question (aside from the provisions of section 29 of the Act before quoted) identical in principle, if not in fact, with that here involved, this court held, Stone, C. J., writing, that a motion in the trial court to arrest the judgment for the error committed came too late. It was said: “Such motion, not raising the question of the guilt of the accused, should always be made before the trial on the merits is entered upon. Parties must not be permitted to speculate on the chances of a favorable verdict, and, failing, then fall back on some preliminary ministerial error not previously called to the attention of the court.” (Italics supplied.) The sound
In construction of section 9 of the Constitution and of Code, § 7314:
Section 9 of the Constitution of 1911 is as follows: “That no person shall, for the same offense, be twice put in jeopardy of life or limb; hut courts may, for rea
While the common-law doctrine in respect of jeopardy was as declared in our previous Constitutions yet the inquiry of jeopardy vel non was affected in conclusion in concrete cases where juries were discharged by the court before verdict, and without the consent of the accused, by considerations comprehended in the general terms, “pressing necessity.” Where the necessity for a discharge under such circumstances was manifestly pressing, it was ruled that the prisoner had not been subjected to jeopardy in that instance; and hence no advantage inured to him because of the proceedings so thwarted in orderly progress to finality by the action of the court in discharging the jury. So in Ned’s Case the common-law doctrine was taken to negative the possession by the courts of any discretionary power- in the premises — that the power of the courts found its limit.
Assuming to lay down serviceable general rules in respect of the matter in hand, where the prisoner does not consent that the jury may be discharged, it was said in Ned’s Cases:
“(1) That courts have not in capital cases a discretionary authority to discharge a jury after evidence given.
“ (2) That a jury is ipso facto discharged by the termination of the authority of the court to which it is attached.
“(3) That a court does possess the power to discharge a jury in any case of pressing necessity, and should exercise it Avhenever such a case is made to appear.
“(4) That sudden illness of a juror or of the prisoner, so that the trial cannot proceed, are ascertained cases of necessity, and that many others exist, which can only be defined when particular cases arise.
“(5) That a court does not possess the poioer in a capital case to discharge a jury because it cannot or will not agree.”
It was in the light of this view of the common law prevailing with this court that section 9 of the Constitu
The Legislature entered upon the task remitted to it by the Constitution (section 9), and in Code 1907, § 7314,. provided“Sec. 7314. Discharge of Jury: Mistrial Entered.- — The courts or presiding'judges in all
So interpreting the statute (section 7314), it is seen that the Legislature has established two reasons for the discharge of juries, working a mistrial and avoiding jeopardy in that proceeding. These reasons are: First, manifest necessity; second, when such a state of facts intervenes as would, without discharge of the jury, result in the defeat of justice. It is clear that the first reason fixed in the statute is no more nor less than the common law provided in like descriptive language; and hence counsel- for the appellant assert a sound legal proposition when they insist upon the direct authority of Ned’s Case that the statute (section 7314), in the particular that it provides for discharge for “manifest necessity,” does not warrant or justify the discharge of a jury because it cannot or will not agree. Ned’s Case, supra. As appears, however, from the statute (section 7314), juries may be discharged against the objection
Before the adoption of the statute cited, it Avas ruled in Storr's Case, 129 Ala. 101, 29 South. 778, that, while it was necessary in pleas of autrefois acquit that the indictment should be set out, it was not necessary to set out the previous order or judgment of the court discharging the accused. In the early decision of Henry v. State, 33 Ala. 389, 403, it was said: “The pleas of autrefois acquit and autrefois convict consist partly of matters of record, and partly of matters of fact. They must set forth the former indictment, and the acquittal or conviction under it; and it seems to be essential that
None of the pleas set forth the “minutes of the court, assigning the reason or cause for the mistrial,” nor is it averred therein that no entry on the minutes of the reason or for the mistrial was made in the court ordering the mistrial. The pleas were therefore defective.
In the prevailing opinion it is ruled that the court or judge has a discretion conferred in the premises upon it or him by the statute. — Code, § 7314. Such an interpretation of the statute renders it in my opinion, as before stated, violative of the Constitution, in that it would delegate to the court or judge a power committed exclusively to the Legislature to fix the reasons for the discharge of juries. Eeference to the discussion on the thirty-ninth day of the convention framing the present Constitution of this section will discover that it was the particular concern of those formulating this feature of the instrument to avoid just that result. One of the obvious consequences thereof is to repose in courts and judges a discretion, as the majority rule. When the matter of a jury’s discharge is rested in such discretion,
If I may now set down a hope for definite future action in this important particular, I think I may with propriety suggest that what the Legislature should have done with respect to the discharge without the prisoner’s consent of juries unable to agree was this: To provide that such action might be taken whenever the jury has had a reasonable .period in which to deliberate upon their verdict.. “Reasonable” has a definite signification
It is not disputed that appellant has been twice tried in the same court for the same capital felony.
It appears from the record beyond any reasonable doubt that on the second trial the court declined to allow the prisoner to plead the former jeopardy. Within the time allowed, and in the manner and form prescribed by law, the prisoner interposed seven separate pleas setting up the former jeopardy. The trial court sustained demurrers to each of these pleas, and put defendant upon a second trial on his plea of not guilty. The trial court acted upon the theory that the jury on the first trial had been discharged by the court before verdict found, for the reason and in the mode prescribed by section 7314 of the Code, and in accordance with section 9 of the Constitution; and this was the end of the matter, and that a plea of former jeopardy was not applicable or appropriate in such case.
This court sustains the action of the trial court in requiring the accused to undergo two trials for the same offense, and to be thus twice put in jeopardy of his life, upon a theory which I do not think is a correct one. It certainly has no precedent. It is one which I think is exceedingly dangerous, and which without doubt breaks down the established rules of criminal procedure and practice which have always prevailed in this State and at common law, and in all other States, so far as the books show. This court says that the pleas should have contained certain allegations which they did not contain, in order to negative a proper discharge of the first jury without a verdict; and that the pleas were
The only possible justification of such a proceeding is that under our present law a prisoner is never in jeopardy if the court, for any cause, discharge the jury after it is charged with the deliverance of the accused. I think it perfectly evident that the trial court acted upon the theory that the last clause of' section 9 of the Constitution as amended and section 7314 of the Code
The part of the opinion to which I cannot agree is expressed as follows: “The jeopardy relied upon was the unauthorized discharge of the jury. Therefore the pleas should have set up the order of discharge, or else averred that no order was entered upon the minutes, and, failing to contain this material and important averment, they were subject to the State’s demurrer. While form 7, p. 843, 3 Code 1907, is made sufficient, an examination of same will 'disclose that the last blank contemplated that it be filled with the matters and facts constituting a bar to a subsequent prosecution, and the defendant should, therefore, set out an order improperly made or aver that no legal or valid order was made.” I cannot agree that “the jeopardy relied upon was the unauthorized discharge of the jury.” The very reverse of that, I think, is true. It was the State that relied
The court holds as to the Code form for a plea of former jeopardy that “an examination of sarnie will disclose that the last blank contemplated that it be filled with the matters and facts constituting a bar to a subsequent prosecution, and that the defendant should, therefore, set out an order improperly made, or aver that no legal or valid order was made.” I cannot agree that an examination of the form Avill disclose any such purpose or intention. However unfortunate it may be for the State or for the defendant, it happens that the Avriter of this opinion, as code commissioner, is responsible for the appearance of both the form of the plea referred to and the statute which the court says the plea
If the law of this State were like the law of the United States and that of several other States, then I would concede that the pleas in this case were not sufficient; but the law of this State and of most of the States of the Ujnion is different from that of the United States .and of those States following the decision of the United
Discharge of the jury before verdict, during the term of the court is presumed to be error;;.-and, if there are any facts or matters which cure or rebut the error, they ought to be shown by the state, instead of the defendant’s being required to negative every possible cause or ■ reason which would justify the'discharge. I do not think that it has ever been the rule in this state to hold defendants in criminal proceedings to that high degree of strictness in pleadings which this defendant is held to-in this case. Pleas exactly like these have been held sufficient by many courts, and they conform to every requirement laid down by the text-writers upon the subject, besides following both the common-law and the statutory forms prescribed by such pleas. I do not think that a court ought to deny a prisoner the opportunity of asserting, as a defense, a right given him by the Constitution merely because of the form of his plea. It was said by a great judge (often quoted in the opinions of this court) that courts are so far of counsel for defendants in capital cases that they should not allow the accused to waive or lose by ignorance or oversight his constitutional rights and privileges. Courts should see to it that persons charged of capital offenses shall have their defense properly presented to the court and jury, so that they may be duly passed upon. It is not the policy of our court to hold them to strict rules of special pleading, as was done with the defendant in this' case. A rule of court or of pleading or practice which would deprive an accused person of the opportunity of asserting his constitutional rights is as much to be con
I think the construction placed on the Constitution, on the statute, and on, the plea in this case • is wrong; and I believe that the authorities hereinafter referred to show beyond doubt that it is wrong. In order that this may clearly appear, I will cite authorities to show what the ancient common law of England was upon the subject, what that of the United States is, and what has always been held to be, the law in this state. At ancient common law nothing would authorize the discharge of a jury without verdict. A verdict was coerced by punishing the jury if they did not otherwise agree. In the federal courts, the juries can be discharged almost at the pleasure of the judge, and jeopardy is not held to have begun until there is a verdict. In this state, from the beginning till now, a discharge was authorized in cases of manifest necessity, and when justice would otherwise be defeated, but it was not a matter of discretion with the judge. He could do so only for reasons fixed by law, statutory or common, of this state. The trial judge, however, was never the sole and final judge of what would constitute the necessity or prevent justice. This the court in this case (as I understand the opinion) holds the law now to be. If so, then the pleas in this case (or some of them — I admit some are bad) are good, and, the demurrer admitting the facts stated in the plea as to which there could be no doubt, then the court of necessity erred in sustaining the demurrer.
My Brothers wholly misconceive the purpose, object and effect of section 7314 of the Code. It fixes no definite or specific cause or reason which will authorize the
In the case of Commonwealth v. Holley, 3 Gray (Mass.) 459, Bishop, J., speaking on the subject, said." “The object of the Declaration of Rights was to secure substantial privileges and benefits to parties criminally charged, not to require particular forms, except where they are necessary to the purpose of justice and fair dealing towards persons accused, so as to ensure a full and fair trial.” To constitute jeopardy in the sense
Section 9 of the Bill of Rights, and sections 7310-7314 of the Code, at most, merely provide certain reasons which may justify the court in discharging the jury, and which, if set forth in a replication, would be
In ascertaining the meaning of the phrase taken from the Bill of Rights, it must be construed with reference to the common law from which it was taken. — 1 Kent, Com. 336; United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890, in which the court said: “In this, as in other respects, it (a constitutional provision) must be interpreted in the light of the common law, the principles and history of which were fa
In United States v. Sanges, 14 U. S. 310, 12 Sup. Ct. 609, 36 L. Ed. 445, it was held that a writ of error did not lie in favor of the United States in a criminal case. Mr. Justice Gray said: ' “Prom the time of Lord Hale to that of Chadwick’s Case * * * the text-books, with hardly an exception, either assume or assert that the defendant (or his.representative) is the only party who can have either a new trial or a writ of error in a criminal case, and that a judgment in his favor is final and conclusive.” Mr. Justice Gray also said in U. S. v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300: “The Constitution of the United States in the fifth amendment • declares, ‘nor shall any person be subject to be twice put in jeopardy of life or limb.’ The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and'therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” — Gommomoealth v. Peters, 12 Mete. (Mass.) 387; 2 Hawk. P. C. C. 35, § 3; 1 Bishop, Crim. L. § 1028. “It is the settled law of this court-, then, that former jeopardy includes one who has been acquitted, by a verdict, and it was found upon a defective indictment. The protection is not, as the court below held, against the peril of a second-punishment, ■ but
“The trial by jury is that trial by the peeys of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter. * * * The antiquity and excellence of this trial for the settling of civil property has before been explained at large. And it will hold much stronger in criminal cases; since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of the judges appointed by the crown in suits between the king and the subject than in disputes between one individual and another to settle the metes and boundaries
In the McCauley Case, 26 Ala. 138, in speaking of the decisions of this and other courts upon the subject of former jeopardy, it was said: “Every decision of this kind rests upon this solid ground that such decision is essential' to preserve inviolate to the prisoner the right of trial by jury as guaranteed by the Constitution. This right cannot mean less than a right to have the deliberations of the jury, when once they have begun the trial and heard the evidence, continued until the occurrence of a sufficient legal reason for their discharge, and the right to have during the entire period of such continuance the chance of a verdict of acquittal at the hands of that jury. It is impossible for any judge to say that the jury would not have acquitted him. It is equally impossible for any judge to say he can get another jury who will acquit him. The law does say, if any jury ever does acquit him, their verdict shall not be set aside by any court, however unwarranted by the law and the evidence in the case that verdict may be.
Story, J., speaking on this subject in the case of U. S. v. Perez, 9 Wheat. 579, 6 L. Ed. 165, said: “The question therefore arises whether the discharge of the jury by the court from giving any verdict upon the indictment with Avhich they were charged Avithout the consent of the prisoner is a bar to any future trial for the same offense. If it be so, then he is entitled to be discharged from custody; if not, then he ought to be held