*1 thе plaintiff incumbent paid It was adequately. upon the plaintiff to establish his claim and to present competent evidence as worth to what his services were give credits for This actually received. payments he failed to do. The correct court, therefore, was dismissing his claim. affirmed.
No. 21475. McCoy City Lee Romie The District of The County Judge. Edward Denver; J. Keating, Hon. (397 733) P.2d Rehearing Jаnuary 11, Decided 1964. December denied *2 Ginsberg, Charles for petitioner. respondents.
Walter F. Scherer, En Banc. opinion
Mr. Justice Moore delivered the Court. This is an in which original proceeding prohibition a rule, this issued directed to district respondent court and the to show cause judge thereof, why not sought granted. relief should giving proceeding The are admitted facts rise to this follows; petitioner, McCoy, The Romie Lee was named defend- respondent court in ant in an information filed in the alleged assault it was she committed an upon McCoy one intent to murder Ellison Dave guilty plea her him. filed entered a She prior by jury. written waiver of Pursuant to a trial setting, The June the case came on for on attorney made district counsel the defendant opening McCoy their statements, and Ellison Dave was duly called as a examined witness; sworn; and wаs testimony, attorney. giving the district After certain collapsed A witness died in the courtroom. recess was taken court re-convened. after which the following proceedings place: then took
“THE In COURT: this case number matter, very abruptly I believe record should show morning matter was halted or terminated as of this complaining or about ten a.m., witness, when the one McCoy, disability Ellison Dave was stricken with some *3 —apparently testifying, a heart and attack —while died shortly course, thereafter this courtroom, in which of proceeding particular has terminated the insofar as this case is concerned at time. this any requests
“Does either side have make of this to Court at this time? your please, TITCOMBE: If
“MR. Honor this time at I would move for a mis-trial because of events this Cоurt has and the related, fact that the defendant in complaining action, this who was married to witness upset who died in this courtroom, and and shaken visibly left the and courtroom, other witnesses were so upset, impossible shaken and I believe it would be to proceed respectfully request time, at this and a mis- trial. object GINSBERG:
“MR. We a mis-trial. de- to This living pressure fendant has been of this casе long for time now. Her life most has unbearable. been principal The State’s witness died—their witness. That doesn’t alter the facts in this case. If this we submitted jeop-
matter to a there would have jury certainly now. matter and in this ardy, jeopardy there is Mr. further, “THE anything Did you COURT: have District Attorney? Honor. Nothing, your
“MR. TITCOMBE: can agree I “THE COURT: believe this and also both stated counsel sides things certain on by Ginsberg made Mr. by thе statements to enumerate But finds herself. in which defendant the situation this this that arose in view facts and circumstances doesn’t this Court one, fault of no morning, through defendant, of any wish, certainly, prolong agony the motion I am fact, going grant but despite counsel for time, for a and suggest this those and defense that question and ask the time, can at a later matters be taken up can District what he to expedite do Attorney it be done as matter, preferably expeditiously possible. motion mis-trial be granted your
“The will will be exceptions noted, Ginsberg.” Mr. 1964,
On defendant moved district court June the information on the that she ground for dismissal of in connection with said placed had been and could not on trial. alleged again placed offense it, court heard overrulеd respondent motion, ordered that the case be tried on October On 26, 1964. September petition was filed prohibition court and attached copy this thereto was a certified full district court. record as made The ultimate question determination *4 is whether the scheduled trial Romie Lee McCoy, circumstances, the foregoing would her the deny guaranteed proteсtion II, Article section 18, Colorado Constitution which provides pertinent part: * * “* nor shall be twice any person put * * *” same for the offense.
119
It is
in the
well settled that
attaches
prosecution of a
criminal case which is tried to the
presentation
point
proof
without a
“at the
where
begins.” State v.
280,
65
198 P.2d
Blackwell,
405,
Nev.
cert. denied,
In Markiewicz Black, 138 Colo. 330 P.2d approved governing point 539, this court rule “the prosecution time when, which, the state of jeopardy attached.” That rule is stated C.J.S. pertinent part following and includes in statement: “* * * jury, in a case submitted to the court without a jeopardy begins after accused has been ar- indicted, raigned, pleaded, begun and has and the court has * * hear evidence, *.” jurisdiction
We any know of no deсision from agreement is out of with this rule. Those cases which support accepted it are so numerous and well re- quire no further documentation.
In the instant case the trial had commenced; attorney district counsel accused had made respective opening their they expected statements as to the facts which prove; and the first witness for the peоple questions put had been sworn and answered all collapsed. Clearly, him, until he the defendant was jeopardy. remaining question then is—whether there legal justification to declare a mistrial which in prevents sustaining plea turn the defendant from her of former 291 P.2d In Brown v. Colo. 680, mistrial was ordered in the court. corpus proceedings In habeas court, before this question for determination was stated as follows: “Was legally justified?” the order of mistrial This court an question swered in the affirmative. The opinion following pertinent language: contains the “* « * ‘legal justifi- Consider a moment the term legally justified cation.’ What is it? To be there must objective sought pur- be a reasonable and a substantial *5 mistrial would of a granting pose attained. notion or whimsical of some because legally justified mem- that some as, instance, for such impulse, frivolous artificial an hair or his wore ber of the died [sic] be substan- must for the order the cause limb. While be such It need only be vital. and it need not real, tial manner or way or in some affect, might as could influenc- or retarding, considered as interfering with, hon- administration a to even ing, slight degree, both, any, either, fair, justice even-hаnded est, to the it appears When parties proceeding. and when prevails chancellor that such an irregularity a declares he of his sincere in the exercise exercised fairly that has it must be said he mistrial, properly his action is discretion and that his judicial irregularity In when short, any and legally justified. a correction appears, capable of notice and worthy situa- Such legally justified. declaration of mistrial devious many ways tions manifest themselves Jurisprudence, 53 American to enumerate. impossible 682.” 971, page section state- direct attention to
In connection we this motion at the time the judge ment of the respondent dismiss was denied: record in the above- “THE Let show COURT: has sub- defendant entitled matter counsel and learned exhаustive very mitted to this Court time defendant at this rights Brief urging of double grounds Information on the to dismiss the show the time I record does believe the situation occurred the chief prose- the unfortunate stand that there here, cution died on the witness witness near confusion, hysteria deal resulting great also defendant, of the and this court was on the part here. happened shaken what by mis- did a mоtion for grant “At the time the Court has very ably and counsel the defendant trial, was error on the that, substance, part argued on the for a dismissal Court and that the motion grounds entered. of double should now be great hysteria
“In view the fact that there was people the defendant and other courtroom, leading up all where the events to the situation granted feel that Court doеs not mis-trial, the *6 it that it was in The shaken error. defendant was so building, necessary and the was her to leave the regain proceeded to her home to informed, was composure. her not feel that The Court does foregoing, mo- in, set and in the view of the above and exceptions Ginsberg, your tion, Mr. will is denied and be noted.” language
Within ambit of this court of the the quoted People, supra, above from Brown hold we granting in there of the was no abuse discretion; that under all the there was circumstances objective sought” pur a “reasonable and “a substantial pose attained,” and that the cause for was in order the fact “substantial real.” being part
There no abuse discretion on the of the respondents operating prejudice petitiоner, of the discharged. the rule is Justice Frantz
Mr. dissents. Justice
Mr. Frantz dissenting: I entertain the view that the action of the trial court ordering a mistrial on motion of the circumstances case, constituted an acquittal charged, of the offense and thus bars further prosecution for the same It offense. is not within the power by declaring of the trial court, its act of a mis- complaining trial because of the death of the witness deprive in the course of a trial to court, the de- prohibiting person fendant constitutional benefit being put from twice for the same offense. right by defendant had waived her to a trial guilty by plea raised her of the issue charge Trial intent to murder. of assault with Opening were statements commenced.
the court had People by was called made. Thе first witness alleged person He thus assaulted. to have been slumped answering questions, a few and, sworn in the witness-box. It was while after he had died ascertained that testifying. had been he People ensuing for a moved After recess, objection against granted mistrial. The motion was protest Counsel and over the defendant. had client court that his defendant warned the setting resisting jeoрardy. the case for been in In pre- formally had that she defendant maintained trial, put Having viously jeopardy. an ad- sustained seeking proceedings, ruling, original verse she is here in proceed- prohibited from further have the trial ing theory on the of former Rights, II, It is ordained our state Article Bill jeop- put person Section ardy that no shall “be twice *7 disagree, jury or if for the same оffense. If the judgment the or. if verdict, the be after the. arrested shall the accused law, be reversed error in jeopardy.” not be been deemed have to stage proceeding, tried At to be what of a criminal jeopardy jury, This the a set in? to court without does accepted is it rule, court stated in former 22 almost universal as has the § from Law, 241, Criminal
C.J.S., quoted approval Blаck, in Markiewicz we with v. the fol- 128, 539, 138 Colo. 330 P.2d 75 A.L.R.2d lowing: “* * * a the court without In a case submitted to jury, begins jeopardy indicted, accused after has begun pleaded, arraigned, to the court has and has hear 'the evidente....” following also cited
In the Markiewicz case we Pittsburg Paving language Co., Brick 117 from State v. holding support therein: 230 our Pac. Kan.
123 commencement concerned, “So far as aof trial without a must be deemed the jury equivalent arises of a begun one of jury. peril circum- before a under alone same judge acting stances as before a judge jury.” commencement of
Admittedly, testimony present case ushered
Could the a case tried mistrial, court declare in a trial without case? circumstances of this jury, What effect did the mistrial upon declaration of a have the case? the critical subsequent These are which must be questions answered.
So far I has can device a mistrial ascertain, application trials. 23A Criminal only jury C.J.S., See Law, 1382-1385. Indeed, discharge §§ are I can conceive interchangeable judicial acts. of no matter court the course of a trial to a arising which would warrant a mistrial. to declare That “it is without manifest in- impossible рroceed justice to himself” is public, or the defendant basic to the lawful declaration of a v. People mistrial. Barrett, Cai. (N.Y.) 304, R. Dec. 239. Am.
It was noted in the case of Brown
People,
132 Colo.
v.
561,
Can “legal justification” be made to a applicable court as the trier the facts? Can it be said *8 judge would be on more a retrial? assume just we May that the event which him causеd a to declare mistrial will, in some manner, by lapse of make him time, more amenable to render “even-handed to” the justice
124 more the second trial, on commencement of parties motion case on his own so than continued if he had very later date? The for at a resumption of the trial answers. negative content indicates of these questions non-jury in for using prоcedures Reasons mistrial are such cases mistrials non-existent, being cases legi est anima Ratio legis unwarranted. improper Rains, Rains v. soul of s—The reason of law is the law. should 46 19, Accordingly, 97 Colo. P.2d not been declared. have on have a mistrial did declaration of
What effect an rule against placing common law jeopardy? Colorado. still prevails acсused twice in jeopardy conviction double bars a second Common law the same Davidson v. offense. acquittal where there 962. Autrefois 281, acquit, Colo. Pac. there convict, had been an where autrefois acquittal, known to conviction, pleas had been a were was the to the common law common law. Unknown Plea of Miller, of double as such. “The plea 165-166 162, 22 Mo. L.R. Missouri,” Double Jeopardy (1957). consti
It in the jeopardy, would that double appear than come sense, broader implications has some tutional sense, In concept. within the ancient common law contemplated. conviction is not acquittal or Markiewicz in v. People, supra. If such had been the Constitution, tention could they of the framers of our Mississippi, hаve as did the State of prescribed, or conviction on the “there must be an acquittal actual Const, 22, 3, merits to bar another Art. prosecution.” § Const. of Miss. See Art. Iowa. § of Article part How should Court construe pro- constitution which II, Section Colorado that “if the or if jury disagree, vides be re- verdict, after or if the judgment arrested deemed the accused shall law, versed error
125 jeopardy”? to have in Research reveals no answer question. to the pro-
From structure and content of constitutional judiciously argued it vision, could be that the framers specific intended to of the three situa- carve out whole jeopardy. which tions would not constitute As double scope present any the the case does come within specifically situаtions, of the three mentioned the process logically must that exclusion follow it does it Although “Expressio constitute maxim, est cau- alterius,” unius exclusio should be resorted to tiously provisions, construction of constitutional application comports there are times when its apparent appears intention be framers. Such Whitney case here. v. 85 Ariz. 330 P.2d Bolin, my It is convictiоn the mention of three ex- ceptions application of the constitutional doctrine any exceptions. of double excludes other question open on this matter is still to resolution in this my Nevertheless, state. is that, it considered recognizing on basis of decisions of this state necessity,” doctrine “manifest there would no grounds Assuming a mistrial this case. that this engrafted knowledgeably II, Article on Section necessity, of our the rule Constitution of manifest avoiding jeopardy, this case does not come within the rule.
This Court did take unto itself Brown v. supra, language opinion Story from the Mr. Justice (9 Wheat.) in the case of United States Perez, U.S. reading as follows: think “We cases in all nature, of this the law justice authority has invested courts of with to dis- charge giving any from verdict, whenever in opinion, taking their all the circumstances into consid- necessity there eration, is a the act, or the manifest public justice They ends would be are to defeated. im- and it subject; on the exercise sound discretion would all circumstances to define possible power sure, interfere. To be render it proper urgent caution, used with ought greatest causes; obvious and fоr circumstances, very plain be ex- should courts especially cases capital any interfere with tremely careful how they *10 (Emphasis the prisoner.” chances of life favor of supplied.) as necessity manifest
Courts the doctrine of invoking thus: rationalize rendering jeopardy inapplicable the such, pre- dependent upon becomes “Jeopardy, оrgan- legally the tribunal continue sumption will end of the charged, accused being the ized, — valid judgment and in the a trial, end, pronounce Double the dither for accused.” Pleas against or “The 265. Missouri,” Jeopardy supra, tri- But a trial to the court without a the jury, bunal Where the jury continues legally organized. an event part court, disrupt unexpected may of the court it organization making quеstionable whether at date. jury will be available a later
Hence, justice, manifest in order to achieve necessity, some on a availability has The bearing jury trial. date, at a convenence the individual jury later that certain jury, possibility jurors members of the may absent from the or city may required undergo and a treatment, myriad surgical medical of other unforeseen it neces- circumstances, may make to declare a rather than the cause sary continue because of untoward event an creating emergency some in the of a case. But the hears a crimi- who judge nal case hear- without can always postpone it convenient until some future ing expeditiously time parties himself involved. could have continued the criminal case further at some hearing later date. There question not manifest for a necessity mistrial under present been better circumstances. would have Justice by adjourning hearing at date, served later up time the court would take the trial brought point it a halt cause where had been by reason of the death of the witness. justice not furthered
It follows that the ends of
were
especially when
mistrial,
the court declared a
when
doing
necessity
A mis-
no manifest
so.
there was
necessity
compass
trial, not within the
of the manifest
position
effectively
put
doctrine,
the accused in
put
pleading
jeopardy,
that she
twice in
has
prosecution
proceeding
from
that the
is barred
further
charge.
against her on the
Cornero
United States,
v.
No. H. City d/b/a Alfred Abdoo Abdoo, Studio County of Denver. (397 222) P.2d
Decided December