11 Nev. 428 | Nev. | 1876
Lead Opinion
By the Court,
It is alleged in the petition presented on behalf of Maxwell, that he is unlawfully imprisoned and restrained of his liberty by one Andrew Fife, the sheriff of the county of Lincoln.
The facts as presented by the petition, return of the sheriff and proofs submitted-are substantially as follows: The prisoner was accused of - having stolen twenty-tAvo pieces of crude bullion, at said Lincoln county, of the alleged value of twenty-two hundred dollars, gold coin, the property of the Meadow Valley Mining Company, a corporation. He was arrested on said charge in- the territory of Utah, the latter part of June, 1875, upon the requisition' of the governor of this state, and on or about the first day of July delivered into the custody of said sheriff. That
The court convened on the said twelfth day of April, and the venire for the additional jurors having been duly returned, the roll of the jury Avas called, and the nine jurors who had been previously passed, subject to peremptory challenge, and nearly, if not all of the additional jurors summoned, Avere present. The court thereupon, of its own motion, called Andrew Fife, sheriff of said county, Avho, being sworn, testified: “That he could not find any person in the town who Avas Avilling to board or lodge the jury during the trial of this cause, and that he had used the utmost endeavors to do so, but had failed; that he could not get board or lodging for the jury, and kneAV of no way by which it could be obtained.
The bill of exceptions annexed to the petition, after reciting the above testimony, proceeds: “The court knoAving the fact that two trials had been previously had, the first of which occupied twelve days, and the second six days, including night sessions, and that the trial about to take place would take as much time as the last trial, it made the folloAving order, to wit: “Whereupon the court orders that the trial of said cause be continued until Monday, May 1, A. D. 1876, or until the further order of this court, and the jurors in the box are discharged from the further consideration of the case;” counsel for defendant entered his exception. Counsel for defendant then demanded that the trial proceed at once, which the court refused; to which ruling “ counsel for the defendant then and there excepted.” On the succeeding nineteenth day of April, the defendant, on an affidavit setting forth the proceedings had in bis case,
Upon this state of facts, it is claimed that the prisoner is entitled to be released from custody, .if not absolutely, at least upon his own recognizance; and his discharge is urged upon two grounds: first, that the discharge of the jury on the fourth of March, upon the mere statement of the foreman of the jury, that they were unable to agree upon a verdict, was an illegal exercise of power in the court, and the jury having been thus discharged without the consent, and against the objections of the defendant, is equivalent to a verdict of acquittal, and that he cannot legally be held to further answer this or any future indictment for said offense. Second. That the refusal of the court to impanel a jury and proceed with the trial on the twelfth of April, and the subsequent continuance of the trial of his case to the first of May, was a denial of his right to a speedy trial, and by virtue of the provisions of sections 582 and 583 of the criminal practice act, operated as a legal discharge from custody. (Comp. L., 1684 and 2207.)
The first ground relied upon for the release of the prisoner presents for our consideration two questions of importance in the practical administration of criminal law, and so far as we are advised, have not been passed upon by this court. The first question to be considered is, whether the prisoner was in legal jeopardy upon his second trial, and
On the other hand, the courts of several of the states have gone to the opposite extreme, and held that a jury once sworn and charged with a criminal case involving “life and limb,” cannot be discharged by the court before rendering a verdict, except by the consent of the prisoner, or the existence of some overruling necessity, and that the inability of the jury to agree upon a verdict does not create such necessity. (Commonwealth v. Cook, 6 Serg. & R. 577; Commonwealth v. Clue, 3 Rawle, 498; McClury v. State, 29 Pa. 383; Williams v. Commonwealth, 2 Gratt, 567; Ex parte Spear, 1 Dev. 491; State v. Ephraim, 2 Dev. & Bat. 162; Mahala v. State, 10 Yerg. 235; Wright v. State, 5 Ind. 290; Ned v. State, 7 Porter, 187.) Although there still exists some conflict and confusion in the opinion of judges upon this.question, the rule now seems to be pretty well settled in the American courts that whenever the accused has been placed upon trial, upon a valid indictment, before a competent court, and a jury duly impaneled, sworn, and charged with the case, he has then reached the jeopardy, from the repetition of which this constitutional provision protects him, and, therefore, the discharge of the jury be
Bishop, in his treatise on criminal law, after an elaborate review of the authorities, and a discussion of the whole subject, says: “The better view of this whole question may be stated as follows; Whenever a trial has commenced, whether for misdemeanor or felony, the judge discovers any imperfection which will render a verdict against the defendant either void or voidable by him, he may stop the trial, and wliat has been done will be no impediment in the way of any future proceedings. Whenever, also, anything appears showing plainly the fact, that a verdict cannot be reached within the time assigned by law for the holding of the court, he may adjudge this fact to exist; and on making the adjudication matter of record, stop the trial, with like result as before. But, without the adjudication, the stopping of the trial operates to discharge the prisoner. In other words, when the record show's an actual jeopardy to have taken place against the defendant, he is protected thereby from further peril for the alleged offense. But where the record shows also matters disproving the peril, it does not show the peril, wdiatever else it shows, and therefore it does not protect him.” (Bish. on Crim. Law, 873.)
Sections 396 and 397 of the criminal practice act of this state provide as follows: “Sec. 396. If after the retirement of the jury, one of them be taken so sick as to prevent the" continuance of his duty, or any other accident or cause occurs to prevent their being kept for deliberation, the jury may be disehai-ged.
“Sec. 397. Except as provided in the last section, the jury shall not be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the consent of both parties, entered in the minutes, or unless at the expiration of such time as the court shall deem proper, it satisfactorily*436 appear that there is no reasonable probability that the jury can agree.”
These provisions of the statute must be construed with reference to the constitutional restriction in respect to a second jeopardy, and when so construed, it is apparent they are in perfect accord with the doctrine above cited from Bishop. Both recognize the trial courts invested with power, in the exercise of a sound legal discretion, to discharge a jury after the cause has been submitted to them, Avithout the consent of the defendant, and Avithout the discharge constituting a legal bar to a future trial, in all cases of manifest necessity, whether such necessity arises from some physical cause occurring during the trial or the deliberation of the jury, or from the inability of the jury to agree upon a verdict.
This discretionary power thus recognized is, however, an absolute unrestricted discretion, depending upon the mere Avill of the judge, but is a sound legal discretion, to be exercised only upon sufficient grounds. “The power of the court to discharge a jury without the consent of the defendant,” said Mr. Justice Sprague, in Ex parte McLaughlin, “is not an absolute uncontrolled discretionary power. It must be exercised in accordance with established legal rules, and a sound legal discretion in the application of such rules to the facts and circumstances of each particular case, and in this state is subject to review by an appellate court.” (41 Cal. 211.) That it ought to be exercised in cases of mere disagreement, only after a long effort of the jury to agree, and when it satisfactorily appears to the court that there is no reasonable probability of their doing so, is well settled. And it seems to be equally well settled that the facts and circumstances, which induce the discharge, and an adjudication thereon, ought to be stated and appear in the record. (State v. Ephraim, 2 Dev. & Bat. L, 162; Conway & Lynch, v. The Queen, 1 Cox’s Cr. Cas. 1; People v. Cage, 48 Cal. 323; Poage v. State, 3 Ohio St. 229; State v. Prince, 63 N. C. 529.)
The question, then, recurs, whether the facts and circumstances appearing upon the record of the second trial of
We are, therefore, of opinion that the prisoner has been once put in jeopardy within the meaning of the constitutional provision under consideration, and that the discharge of the jury, under the circumstances disclosed by the record, was equivalent to a verdict of acquittal. But the fur
He further says: “If there has been a legal jeopardy, this is equivalent to a verdict of acquittal, and on motion, without plea, the prisoner is entitled to his discharge. * * But a writ of habeas corpus will not lie.” (Id. 821, and see authorities cited.) In support of the latter proposition, however, ‘lie cites only the cases of Wright v. The State (5 Ind. 290), and Ex parte Ruthven (17 Mo. 541). On referring to those cases it will be observed that the decisions were respectively based on statutes regulating proceedings on the writ of habeas corpus entirely unlike the statute of this state on the same subject. The statutes of Indiana and Missouri, respectively forbid the court or judge on habeas corpus to inquire into the merits of an application, and discharge the prisoner, in a case where he is confined under an indictment, or under process issued thereon. No such restriction is to be found in the “act concerning the writ of habeas corpus” of this state; on the contrary, by the provisions of the fifteenth and sixteenth sections of said act, the court or judge, on the return of the writ, is required to hear the allegations and proofs and to look into all the facts of the ease, whether the prisoner be detained under an indict
• It will thus be seen that the powers of the court, or judge, charged with the duties of allowing this important writ, and of determining the rights of a party thereunder, are by ■these statutory provisions greatly extended beyond what existed at the common law, and beyond that conferred by the respective statutes of Indiana and Missouri upon which the decisions in the cases above referred to rest.
Put notwithstanding the powers of the court and judge are, by these. enactments, greatly enlarged, yet it is apparent they were not intended by the legislature to have the force and operation of an appeal, a writ of error, or a eei’tiorari; nor were they designed as a substitute for either. And although it is the duty of the court, in the exercise of its proper jurisdiction under these provisions of the statute, to inquire into all the facts of the case, without regard to the nature of the process or authority under which the prisoner is detained, and, although the original commitment was lawful, to discharge him, if it appears that by reason of the happening of some subsequent “act, omission, or event,” he has become entitled to his discharge, nevertheless the “act, omission, or event” which will justify the court in discharging the prisoner must be such as to render the process or. authority under which he is detained absolutely void, and not merely voidable. (Hurd on Hab. Corp. 332.)
It follows, therefore, that inasmuch as the defendant was at liberty to waive his constitutional right tó be protected from a second jeopardy, and to have his case re-submitted for trial before another 'jury, the action of the court in dis
The remaining ground upon which the prisoner’s discharge is urged rests upon the orders of the court made on the 12th day of April and the. 1st day of May, respectively, postponing the trial. As neither of said orders continued the trial of the cause for the term, it is clear that the principle involved is not distinguishable from that decided in the case of Ex parte Larkin, at the April term of this court, in which we held “that the regulation of the business of the term is a matter exclusively within the control of the judge, and cannot be interfered with by this court, certainly nothin this proceeding.”
It therefore follows that the prisoner- must be remanded to the custody of the sheriff of. Lincoln county, and.it is.so ordered.
Concurrence Opinion
concurring:
In regard to the first ground upon which the petitioner claims his release, that is, that the discharge of the jury without a verdict, at the January term of the district court, amounted under the circumstances to-an acquittal, 1 concur in the conclusion reached by Justice Earll, that, even if it
In regard to the second ground relied on by the petitioner, it is clear that no case had arisen, at the date of the filing of his petition, to which the provisions of secs. 582, 583 of the criminal practice act are applicable. He had' been brought to trial at the first and second terms after he was indicted, but the juries had failed to agree. At the next' term of the court his case had been continued from one day to a later day but not over the term; and when this petition was filed the term was but half expired. It is clear, therefore, that his application to this court was premature. Ho should have waited till the April term had expired without his being brought to trial, or, at least, until his case had been continued over the term, and then he should have moved the district court for his discharge, or for his release on his own recognizance. If his motion had then been denied without good cause, his imprisonment would have become unlawful, and the writ of habeas corpus would have been his proper remedy.
It should be understood that an imprisonment which is at first lawful, does not become unlawful until the right to bo discharged has accrued, and that right has been denied, after a proper application to the court or officer whose duty-it is to act in the premises. In cases of this sort, the statute expressly provides that the application to be discharged or bailed shall be made to the district court in which the indictment is pending, and it would seem that no express statutory provisions ought to have been required to demonstrate the propriety of such a course.
I concur in the order to remand.
