People v. Parker, 145 Mich. 488

People v. Parker

145 Mich. 488 | Mich. | 1906

Lead Opinion

Grant, J.

(after stating the facts). The gravest and most important question in the case arises upon the action of the court in discharging the third jury, after the people had rested their case and the respondent had entered upon his defense. The record discloses no specific acts which showed a disqualification of any juror. In discharging the jury the presiding judge stated that “no direct proof of any wrong-doing had been presented to the court in sufficient volume to satisfy the court that any wrong had been actually perpetrated.” He also stated to the jury that they were an average body of men in intelligence, honesty, and ability. No jurors were examined as-to any misconduct, and nothing appears upon the record tending to show any misconduct upon their part. The record shows only the statement of the presiding judge, based on an ex parte investigation, in which it appears that neither the defendant nor his counsel were permitted to take any part, and the jurors were allowed no opportunity to defend themselves from any charge. Even under the language of the Constitution of Michigan (article 6, § 29), which is different from that of the Constitution of the United States and many other States upon the question of jeopardy, a jury impaneled, accepted, and sworn cannot be discharged except for inability to agree, or for some other overruling necessity, which courts hold to constitute a mistrial. People v. Taylor, 117 Mich. 583; People v. Jones, 48 Mich. 554. After a jury has been impaneled it may be shown at any stage of the trial that a juror has testified falsely as to his qualifications, in which case a juror may be withdrawn and the jury discharged. Simmons v. U. S., 142 U. S. 148. The court in that case quoted with approval the language of Mr. Justice Story in U. S. v. Perez, 9 Wheat. (U. S.) 579:

“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 *500sound 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 ; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office.”

Mr. Justice Curtis, in TJ. S. v. Morris, 1 Curt. (U. S.) 37, said:

“It is a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case.”

A qualified jury is essential to constitute jeopardy. The court may, at any time during the progress of the trial, arrest it to determine the legal qualifications of a juror. If it be ascertained, upon an examination, that a juror was disqualified when sworn and accepted, or by subsequent conduct has become disqualified, the court may discharge the jury without prejudice to a new trial. Such conduct on the part of a juror is that overruling necessity essential to constitute a mistrial. In re Ascher, 130 Mich. 540.

In People v. Jones, supra, the plea of former acquittal showed no verdict, but did show that a jury was impaneled and proofs taken, and the court held:

“ Under all the authorities this entitled the defendant to a verdict one way or the other, and if the jury was discharged without verdict and without any overruling necessity this was a final discharge of the accused.”

Appellate courts will not interfere with the action of trial courts in discharging juries, where facts are found upon which such action can be based. But the facts must be found and placed upon the record. State v. Wiseman, 68 N. C. 203. The court cannot arbitrarily discharge a jury upon rumors of improper conduct, or of attempts to *501corrupt one or more of them. In the Ascher Case the trial judge made a specific finding of facts showing corrupt conduct on the part of some of the jurors, an utter disregard of the instructions of the court, and pre-existing bias on the part of some of the jurors in favor of the respondent contrary to their sworn statements when examined upon the voir dire, and that an officer in charge of the jury was made drunk by some of the jurors. Under such conditions the accused had not been in jeopardy. No such state of facts is found- here. No juror is found to be disqualified; neither is the entire panel found to be tainted. Rumor and suspicion are not sufficient; neither is the fear on the part of the trial judge “ that a fair and impartial trial is not certain to be the result.” Under the facts of this case, both the accused and the people were entitled to have th¿ case submitted to the jury. The accused was in legal jeopardy. No overruling necessity for the discharge of the jury had arisen. It follows that the conviction must be reversed, and the prisoner discharged.

"While it is unfortunate that the respondent shall escape punishment for his crime, it is essential, for the public safety, and for the protection of accused persons, to preserve those forms of procedure provided by the Constitution and the laws, and guaranteed to every citizen. While in the Ascher Case the trial judge entered upon an ex parte and private examination, as did also the judge in this case, and made his finding from such an examination, speaking for myself, I desire to say that I do not regard that as the proper practice. I think the examination should take place in the presence of the prosecuting attorney, the respondent;/ and his counsel, and the jury or jurors who are charged with misconduct. It is justice to a juror that he h'ave a hearing before a jury is summarily discharged because of misconduct charged against him.

2. While it is unnecessary to refer to any other of the errors alleged, w-e deem it important to refer to one. It *502is clearly the duty of the court not to discharge the jury so long as there is any reasonable probability that they can agree. The second jury in this case did not state that they could not agree, their only statement being that they had so far been unable to agree. The plain inference from this language is that the jury had not reached the conclusion that an agreement was improbable. The judge arbitrarily refused to ask them as to the probability of an agreement. No authority is cited which holds that the court may discharge a jury without ascertaining whether an agreement is probable. As to thelength of time a jury should be kept out, and what it is essential the record should show, the authorities are not agreed. The common practice has been, in this State, at least, to inquire of the jury as to their ability to agree, and the court is justified in accepting their statement that they cannot agree as proper evidence in determining the question. People v. Harding, 53, Mich. 481. Chief Justice Shaw stated the rule as follows:

“It has been held in modern times, though it was long doubted, * * * that where the jury, after being long kept together, cannot agree, where it is manifest that they have no reasonable prospect of agreeing, and no means remain but famine or exhaustion to compel them to agree, or where the powers of the court are - near terminating by the legal termination of their session,, the court, as a power necessarily incident to the due. and regular administration of justice, may discharge the jury without the consent of the prisoner, and again impanel a jury and put him upon his trial.” Com. v. Roby, 12 Pick. (Mass.) 496.

The jury had made no requ st to be called into the court-room. The presiding judgt sent for them after they had been out only about four hour A and discharged them upon the sole statement that so far ihey had been unable to agree. Whether this would be fetal to the conviction we need not determine. We discuss the matter in order to show what we believe to be the proper practice, as a *503guide in future cases. The practice indicated is justice to the accused, to tbe jurors, and to the people.

Conviction reversed, and the prisoner discharged.

McAlvay and Blair, JJ., concurred with Grant, J.

Concurrence Opinion

Carpenter, C. J., and Moore, J.

We concur in the first proposition discussed in the foregoing opinion. As this disposes of the case, we think it unnecessary to express any opinion respecting the second proposition.