Hughes v. State, 35 Ala. 351

Hughes v. State

35 Ala. 351 | Ala. | 1860

A. J. WALKER, O. J.

The defendant in this case had been previously put upon Ms trial, and the jury was discharged after the commencement of the examination of the witnesses. The discharge was ordered upon the authority of an agreement, made before the jury was empanneled. We understand that agreement to have been, that if a certain person, summoned to testify on the part of the State, should, during the progress of the trial, be incapacitated by intoxication to testify intelligibly, the jury should be discharged. The agreement was voluntarily made by the accused, as the condition upon which the court overruled the application on the part of the prosecution for a continuance on account of the witness’ alleged drunkenness, and yielded to the solicitude of tbe accused for a trial. The contingency of the incapacity of the witness by reason of intoxication occurred, and the court discharged the jury, in despite of the defendant’s objection. There can be no distinction in principle, between a consent given before tbe trial, that, upon the occurrence of a certain contingency during the trial, the jury shall he discharged, and a consent to the discharge of the jury given ac the time when the discharge is ordered. If the defendant'have capacity to bind himself by tbe *359consent in the latter case, he may in the other. The question, therefore, is the general one as to the competency of a defendant to waive his right to a verdict from a jury charged with his trial, and, by his consent, to subject himself to a second trial for the same offense.

The general rule laid down by Lord Coke, unless regarded as subject to exceptions, would deny the power of discharging a jury, in a case of felony, under any circumstances ; and in a note to Chedwick v. Hughes, Carthew’s R. 464, Lord Holt is represented to have said, when sitting a case of perjury, in 1698, that it was the opinion of all the judges in England, upon debate between them, “ that in capital cases a juror cannot be withdrawn, though all parties consent to it.” — King v. Perkins, Holt’s R. 408. In the case of the Kinlochs, decided in 1746, it was held, after the most able and 'elaborate argument, and the fullest consideration by the judges, that the general rule of Lord Coke was subject to exceptions; the authority of the reported representation by Lord Holt, as to the opinions of all the judges of England in 1698 was repudiated; and defendants charged with treason, who had been previously put in jeopardy, were nevertheless tried and convicted, because they had consented to the dischaige of the jury on the first trial. — Poster’s Crown Law, 27-89. We can find no case since the decision last named, in which the authority of the court to discharge the jury, with the consent of the accused, has ever been denied ; but, on the contrary, the authority lias since been recognized by a long chain of decisions, both in England and America, and the principle is established in Alabama jurisprudence. — State v. Slack, 6 Ala. 676 ; Cobia v. State, 16 Ala. 781; Ned v. State, 7 Porter, 187 ; State v. Hughes, 2 Ala. 102; Lore v. State, 4 Ala. 173; McCauley v. State, 26 Ala. 135, 144; Rex v. Stokes, 6 C & P. 151; 1 Bishop on Crim. Law, § 673 ; Wharton’s Crim. Law, § 591; Hawkins’ Pleas, book 2, eb. 47, § 1; Common weal tli v. Cook, 6 Ser. & R. 590.

The principle upon which i’ests this doctrine of the defendant’s capacity to consent to the discharge of the jury is, that the constitutional immunity against a second trial *360is for Ms benefit, and lie may waive it. — Rosenbaum v. State, 33 Ala. 354. By the exercise of the wise, humane, and just discretion, which, it is believed, characterizes the conduct of the bench of our eountiy towards accused persons, the defendant can always be protected from importunities to consent to a discharge of the jury, a refusal of which might operate to his prejudice, and also from the making of such consent where it would not be for his benefit. '

Gresley, in his work on Equity Evidence, (p. 40,) says, that Lord Kenyon declared that no consent on earth could warrant the examination of a witness on interrogatories in criminal cases. We have not been able to find the case in -which Lord Kenyon is represented to have made that declaration. If such declaration was made by Lord Kenyon, we would not feel justified, upon its authority, to affirm the incapacity of an accused person to consent to a mistrial.

It was decided in England, that a peer of the realm could not waive his trial by his peers, and put himself on a trial by the country. — Lord JDacre’s case, Kelyng’s R. 56; Lord Audley’s case, 1 State Trials, 387; 2 Wooddeson’s Yinerian Lectures, 581. The reason given in Lord Audley’s case was, that the trial of a peer by his peers was no privilege, but the law declared by magna charla. This reason is adopted by Wooddesou, who says, “that this mode of trial is not so properly a privilege of the nobility, as part of the indispensable law of the land, like the trial of commoners by commoners, enacted, or rather declared by magna charla.” — See 2 Wooddeson’s Yiner. Lee. 581.

The New York court of appeals, in the case of Cancemi v. The People, (4 Smith, 128;) and the court of quarter-sessions for Alleghany county, Pa., in the case of the Commonwealth v. Shaw, reported in the American Law Register for March, 1859, have decided, that a defendant in a criminal case could not consent to a trial by eleven persons, and waive his right to a trial by the constitutional number of twelve. These decisions, as well as the English decisions above referred to, may be defensi*361ble upon the ground, that the consent, which the defendant was deemed incompetent to make, would .have the effect of changing the nature of the tribunal appointed for the trial of persons charged with the commission of crimes; and such seems to be the ground upon which they arc put. Those decisions may be right, and yet there may be a capacity to consent to a mistrial. It may well be that a defendant in a criminal case may be denied the power of changing the very nature of the tribunal prescribed by the constitution, and yet be allowed to concur in a discharge of the jury empanneled for his trial.

[2.] If the court erred in refusing to permit the defendant to file his plea, it was error without injury ; because the bill of exceptions affirmatively discloses — and it seems to have been conceded by tbe defendant — that the design of the plea was to bring forward the very matter, which, wo have seen, constituted no defense. There can be no injury from tbe rejection of a plea, which we know could not have been sustained. — Hailey v. Falconer, 32 Ala. 536.

[3.] In my opinion, tbe State made its election to prosecute for a selling to Perry Logan; and upon tbe principle settled in Elam v. State, 26 Ala. 48, and Cochran v. State, 80 Ala. 542, should not have been permitted afterwards to prosecute for selling to Henderson Logan, a man of intemperate habits. But my brethren think differently, and submit the following views in support of their opinion :

The present indictment contains but a single count; and it is contended for the plaintiff in error, that the prosecution, by the conduct of tbe solicitor on the day when the trial was first entered upon, had elected to proceed for the selling which was testified to by Perry Logan. It is difficult to lay down a clear rule, which will enable the circuit courts to determine, in all cases, when tbe prosecutor lias made bis election of the particular act or offense, for which he will proceed in the given case. Some latitude must he allowed to that officer while conducting the preliminary examination, that he may ascertain the particular act or transaction to which the witness refers. To *362require him to elect, before he has learned enough to» enable him toindividualize the transaction, would, in many cases, work a denial of justice. When, however, he has pursued the inquiry until a particular act or transaction lias been brought before the minds of the jury — has become identified or individualized — if he then prosecute the inquiry with the view of learning the details and particulars of that act or transaction, he must then be held to have made his election. Less than this will work manifest injustice to the prosecution ; more might lead to great oppression, by tolerating an experimental inquisition into every kindred transaction of the defendant’s life.

Let us apply these principles to this case. When the witness had answered that the defendant had sold him liquors in small quantities, be (the witness) was asked whether he had bought in quantities less than a quart. A full answer to this question would have been, yes, or no. This, it seems to us, was at most an attempt toindividualize an act. There is nothing in the question which called for the particulars or details of any individualized act. The answer of the witness went farther. He not only stated that he had bought of defendant in quantities of a gallon, but added — of his own volition, so far as we can discover — that the liquor thus bought was not drunk on the premises of the seller. There is nothing in the conduct of the solicitor, which enables us to affirm that he sought to bring out the details of any sale, in quantity of a quart or upwards ; and we do not think the unsolicited response of the witness, as to where the liquor was drunk, can be regarded as determining the solicitor’s election.

[4.J The charge given by the court was erroneous, because it authorized a conviction of the defendant, without proof that the offense was committed in the county, and within the time prescribed by the statute of limitations; and for this error, the judgment of the court below must be reversed, and the cause remanded. — Corbett v. State, 31 Ala. 329.