59 Kan. 758 | Kan. | 1898
At the April term, 1898, of the District Court of Cowley County, Peter Allen was convicted of manslaughter in the third degree upon an information charging him with the wilful, deliberate and premeditated murder of John Mann. Before the trial, upon which a conviction was had, the defendant filed a plea of former jeopardy, alleging a trial upon the same charge at the November term, 1897, of the same court, before a jury duly impaneled, and that
“ And now on this ninth day of December, 1897, the jury not having agreed upon a verdict in the above entitled cause, the jury is discharged from further consideration of this case. The bond of the defendant is by the court on his own motion, reduced to $3,000, and this case is continued until next regular term of this court, and the clerk is directed to approve such bond if signed by good and sufficient sureties.”
It does not appear from the record that the jury was unable to agree, nor is there any record entry of an absolute necessity for their discharge. Some testimony was admitted at the trial of this plea, but it was received under objection, and it is contended that only record evidence is admissible. The contention of the defendant is not that a mis-trial operates as a bar to a further proceeding, but it is 'that the record must affirmatively show that some of the reasons enumerated in the Code for the discharge of a jury without a verdict actually existed. It does not appear upon the record that the jury could not have agreed, nor whether a reasonable time was given them within
. . On account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.” Civil Code, § 281, Gen. Stat. 1897, § 291; Crim. Code, § 208, Gen. Stat. 1897, § 201.
As we have seen, the record in this case falls far short of showing a statutory reason or a lawful necessity for the discharge of the jury, and hence the plea of former jeopardy must prevail. In view of the claim that a necessity for the discharge actually existed, we sustain the plea with great reluctance, but the well-established rule of our own and other courts leaves no other course open to us except to reverse the j udgment of the trial court and to order the discharge of the defendant.