41 N.J.L. 598 | N.J. | 1879
The opinion of the court was delivered by
The present motion has for its object the amendment of an entry made in the minutes of this court at the last term. The plaintiffs in error having been convicted of the crime of murder in the first degree, before the Court of Oyer and Terminer of the county of Hudson, and having removed that judgment first to the Supreme Court and then to this court by writ of error, aud such judgment having been reversed in this court for mistakes in law appearing in bills of exceptions taken to the judge’s charge to the jury, and a judgment of reversal having been here entered with an order directing a venire de novo to be issued, the application now made is to vacate so much of such order of reversal as prescribes the summoning of a new jury. It is said that the subject embraced in this part of the entry was not considered by this court; that no reference is made to it in the opinion which was read in this cause on the former occasion; and that the order for this new jury process has been, through inadvertence, improperly embraced in the judgment.
The motion is based on a single ground, and that is that these defendants, having .been once tried for this offence, cannot be retried for the same cause, on the ground that the fundamental principles of law prohibit the putting of a person twice in jeopardy of his life for the same crimination. It 'is contended that this is one of the settled rules of the common law, and which has existed so long as to be entitled to take rank among the maxims of our jurisprudence. The first inquiry, consequently, will be whether this contention is well founded in point of fact.
Preliminarily, however, it should be noted that the proposition that a person cannot be twice tried under the same criminal accusation, would take neither form nor place in any
And this I understand is what has, in point of fact, taken place in the natural development of the common law. In making this assertion, I rely on precedents and decisions, and not on judicial dicta or general expressions. I know of no case in the English courts in which, when a judgment of conviction has been reversed, a retrial has not been ordered, unless when there has been an incurable defect in the proceedings. There can be no doubt that cases can be feadily instanced in which such a course would not be considered justifiable; but I am alluding now to the practical working and outcome of the system. As far as my information extends, no convicted felon has been permitted, upon finding a legal flaw in the proceedings, to depart from the dock unpunished on the sole ground that it would be inconsistent with established rules to jeopard his life a second time. As there have been many reversals in cases of this character, it is manifest, from the result stated, that the rule in question can in no proper sense be said to be a general one. Indeed, so far from such being the case, it appears to me that, in its application to reversed convictions, the so-called rule embraces not the bulk of the
With respect to the maxim in the extended form that, upon the argument, was claimed for it, but little authority, in my estimation, is to be discovered in the reported cases. The name of Lord Coke appears to have constituted its principal sanction, and yet, when we examine what he has said upon the subject, it seems evident that, his expressions have been exaggerated and misapplied. He refers to the topic twice, the allusion in 1 Inst. 227, b, being in these words: “ A jury sworn and charged in case of life or member, cannot be discharged by the court or any other, but they ought to give a verdictand in the second part of the same work, (2 Inst. 110,) is a similar declaration, the language being: “ To speak here once for all, if any person be indicted of treason, or of felony, or larceny, and plead not guilty, and thereupon a jury is returned and
Nor, in this place, should the authority of the Doctor and Student^be pretermitted, for the work has the commendation of Lord Coke himself, for he says, using his own language, “ the author’s name was St. Germain, a discreet man and well read.” I will refer to the following passage of that well-known work, Doc. and Stu., c. 52: “ And if the jury will in no wise agree, I think that the justices may set such order in the matter as may seem to them, by their discretion, to stand upon reason and conscience, by awarding of a new inquest, and by setting a fine upon them that they shall find in default, or otherwise, as they shall think best by their discretion ; like as they may do if one of the jury die before verdict, or if any other like casualties fall in that behalf.” And here again it is plain the doctrine is stated in a way that is repugnant to the generality of Lord Coke’s rule, which denies the right to discharge the jury in any case whatever after they have been called to the book.
The case of Rex v. Keite, 1 Ld. Raym. 138, should also be particularly noticed, for it indicates to us what Lord Holt thought, in a measure, on this subject. There were two indictments — one for murder and the other for stabbing under the statute — and there were two special verdicts, and the difficulty was to deduce, from the facts stated, by legal rules, the character of -the crime. No conclusion was arrived at with respect to this point by the court, but Lord Holt suggested defects in the indictments, and the indictment founded on the stabbing was quashed; and, after noticing certain imperfections in the other indictment, the report says, referring to the Chief Justice, “He did not say absolutely that these exceptions to the indictment of murder are fatal; but he said that if the king’s counsel did not insist to demand their judgment upon the verdict, he should make no scruple to quash it. And the king’s counsel not opposing it, both the indictments were
And, indeed, for a century after the time of Lord Coke the common law undoubtedly continued in this unsettled condition upon this point, for the question of the power of the court to discharge a jury from the box in a capital case was directly raised and discussed as an open question in the important case of the Kinlochs, Fost. 22. This trial grew out of the rebellion, and occurred towards the close of the year 1746. The legal question which was presented to the attention of the court arose out of this state of facts: When these defendants were first arraigned, and a jury sworn, and the case opened by the solicitor-general on the side of the government, it was suggested that the counsel of the defendants wished to interpose certain objections, and which, upon being disclosed, appeared to amount to a plea to the jurisdiction, and which, therefore, ■ could not legally be made available at so late a stage of the procedure. There were certain equitable considerations which finally induced the court, at the request of the prisoners, and with the assent of the attorney-general, to permit a juror to be discharged. This being done, a plea to the jurisdiction, founded on the matter just referred to, was put in, and being overruled by the court a new jury was impaneled, and the defendants convicted; and being brought to the bar to receive judgment, their counsel moved for an arrest of judgment, on
This case, which I consider a leading one, has never been ■reversed, and it serves two purposes — first, it entirely explodes the notion that after the prisoner has been once put in jeopardy by the legal impaneling of a jury lie cannot for the same
That there is a power -in the judiciary to discharge a jury in criminal cases, after' having been impaneled and sworn, and to retry the prisoner after an illegal verdict of conviction, under certain circumstances, will, also appear by a reference to the following cases: Rex v. Hayes, 2 Ld. Raym. 1521; King v. Scalbert, 2 Leach's Cas. 706; King v. Stevenson, 2 Leach's Cas. 618; Elizabeth Meadow's case, Fost. 76.
Passing by some slight indications scattered here and there through the reports, showing the persistence of this uncertainty and judicial vacillation as to the existence of any course of practice that could be called a rule upon the subject, if we-come to the time of Sir William Blackstone we find the same unfixed condition of things. This appears in the very terms used by the commentator in his attempted definition of a rule. These are his words: “ When the evidence is closed on both, sides, and indeed where any evidence lias been given, the jury cannot be discharged (unless in case of evident necessity) until they have given in their verdict.” This rule differs from Lord Coke’s in respect to the elastic qualification contained in it,, and in the feature that it is applicable alike to crimes of-all grades. Moreover, it will be observed that the practical efficacy of the rule is left entirely dependent on the construction that may be put upon the clause relating to 'the class of cases to be excepted out of the rule. What are cases of evident necessity, and who shall be the arbiter on the subject, have been the disputed questions from the beginning. In the case of Whitebread & Fenwick, already cited from St. Tr., in which the jury was discharged because the government had failed to make its case good, the judges doubtless thought that there existed a case of evident necessity for their action. It is clear that the matter was not subjected to anything like a
My examination of the cases up to this period when they cease to be of peremptory authority in this state, has convinced me that there was no general rule upon the subject in question that was considered inflexible or inviolable by the courts; but that as successive exigencies occurred, and it became necessary to reverse judgments or discharge juries in criminal proceedings, such results were invariably attended by an order for a venire de novo, unless the error occasioning the reversal was of a fundamental nature, in which event the prisoner was consigned to bail or to prison to await a retrial on a new indictment. As I have already remarked, there appeal’s to be no recorded instance of a trial that had been rendered abortive by reason of the discharge by the court of a duly impaneled jury, or of an imperfect verdict, or by reversal for error apparent on the record, being held equivalent to a legal acquittal1 or conviction, so as to stand as a bar to a further prosecution.
Nevertheless, during this whole period of time there certainly appear clear traces in the books of an impression prevailing quite generally, that cases might occur in which the action of the court in bringing the trial to a premature close after the jury had been sworn, might constitute error in law and be tantamount, in legal effect, to a verdict in favor of the defence. Such an idea is expressed in the rule enunciated by Blackstone, unless we regard such rule as a declaration of judicial duty in the exercise of that discretion which in most respects is admittedly lodged in the court, over the conduct of the trial. And indeed this is the very interpretation put upon it by certain recent cases in the English courts, and which appear to me to be altogether conclusive upon the point, taking into account the thoroughness of the discussions on these occasions and the eminence of the persons who participated in the decisions.
The first of the cases to which I thus allude, arose in the Irish courts, and is that of Conway and Lynch v. Queen, 7 Irish
And these are the judicial declarations of the law which in the year 1866 were deliberately sanctioned by the Court of the Queen’s Bench in England in the case of Winsor v. Queen, L. R., 1 Q. R. 289. This was also a case in which a jury failing to agree had been discharged by the court, and it was •resolved, after a very full examination of the precedents, that the judge had a discretion in a criminal case to discharge a jury, which a court of error could not review; that the dis•charge of the first jury without a verdict was not equivalent to an acquittal, and that a second jury process might issue. Upon this subject Co'ckburn, Chief Justice, expresses himself •with his usual vigor and perspicuity; he says, speaking of the judicial power in question, “it appears to me that if the true principle on which justice ought to be administered is regarded,
It will be observed, therefore, that if this authoritative judgment is to be accepted as the final exposition of the law upon this subject by the English courts, the result reached is
Touching the judicial views entertained upon this topic by the various courts in this country,-it appears to me enough for ••my present purpose to remark that, although on some important matters in this field they are not consistent, yet I think they, in the main, support the ultimate conclusions to which the English judges have come, except, perhaps, in the one respect of considering every act done by the judge presiding at the trial in discharging the jury a matter of discretion, and not reviewable under any circumstances. In the case of Barrett and Ward v. People, 2 Caines' P. 304, it was •directly held that when the public prosecutor, after the jury had been sworn and evidence offered, with the. assent of the nourt and without the prisoner’s consent, withdrew a juror, merely because he was unprepared with his evidence, the prisoner could not afterwards be tried on the same indictment. And this view seems to be that taken by several of the courts and text writers in this country, such an ending of the prosecution being generally regarded as equivalent to an acquittal of the prisoner. But this doctrine, in my judgment, might, on occasions readily to be imagined, lead unnecessarily to the frustration of justice in criminal prosecutions, and whether it would be sanctioned in this state is not certain; but at present it will suffice to say that it is not now in question, and that no opinion on the point is intended to be expressed. With regard to the right of the court to discharge the jury when necessity exists, the American decisions appear to be uniform in favor of the power; and it was so adjudged in this state over half a century ago, in the case of State v. Hall, 4 Halst. 319. On the other points, for the most part,
Let us now turn to the case before us, and look at it in the-light reflected upon it by the principles thus judicially vindicated and adopted.
The judgment in the present case was reversed, not on> account of any error inherent in the record, but for the reason that certain errors supervened in the charge of the judge at. the trial in giving the case to the jury. It has been repeatedly held that when a judgment of this kind has been reversed on the ground of error manifested in the recorded proceedings, a venire de novo will be ordered. For example, when the judgment against the prisoner is annulled from the radical imperfection of the indictment, as in Vaux's case, 4 Rep. 44; or in case the verdict is so incomplete that a judgment cannot be entered upon it, as in Reg. v. Woodfall, 5 Burr. 2661; Rex v. Wages, 2 Ld. Raym. 1518; or where the jury process has been misawarded, Arundel's case, 6 Rep. 14, a; or the jury process was erroneous in summoning the jury to try one crime when two were charged in the indictment, Campbell v. Queen, 11 Ad. & El. (N. S.) 835; or where a right of challenge to the jury was wrongly overruled, Gray v. Queen, 11 Cl. & Fin. 490. There are a number of
This result, arrived at on the foundation of the general principles of the common law, is much fortified when we come to a consideration of the provision touching this subject, contained in the constitution of this state. That provision is unlike the cognate regulation contained in the national constitution, or in those of the several states, in the circumstance that it embraces a much narrower field. It is section ten of article one that relates to this subject, and it is in these words, viz., “ No person shall, after acquittal, be tried for the same offence.” The expression of immunity in this particular class of cases would seem to give rise to the implication of the exclusion of immunity in all other classes.
A second trial is not interdicted when the first trial has proved abortive by reason of the mistake or misconduct of the judge or jury, or from accident, but only in the one case where the trial has resulted in an acquittal. ' By the bare
With regard to the form of the entry of the present judgment on the minutes of this court, it was suggested that it was erroneous, as it contained a direction that a venire de novo should be issued out of the Oyer and Terminer. But this direction is proper, as it truly indicates to the subordinate court the purpose and judgment of this court. It appears to be in accordance with the English practice. A similar entry will be found in the case of Campbell v. Queen, 11 Ad. & El. (N. S.) 813, and in Gray v. Queen, supra.
Let the motion be denied.