59 P. 1080 | Kan. | 1900
The opinion of the court was delivered by
This is an appeal by the state upon a question reserved by it. The defendant in the court below interposed a plea of former jeopardy, which, upon hearing and consideration by the court, was sustained and an order made for his discharge, The defendant had been informed against for grand larceny. Upon the trial of his case the jury reported that they were unable to agree, whereupon they were discharged from further consideration of the case. The action was continued to the next succeeding term, and at that term the defendant filed his plea of former jeopardy. In this plea he alleged that, at the trial of his case at the preceding term, “the jury were arbitrarily discharged without a verdict from the consideration of the case, and without any sufficient or lawful reason therefor, to which discharge defendant excepted, and having once been in jeopardy he cannot again be placed upon trial.” The evidence in support of this plea was, of course, the record of the
“ The said jury retired in charge of a sworn bailiff to consider of their verdict. And after being absent some time in consideration of their verdict they were duly returned to the jury-box and the court duly inquired of the foreman whether they had agreed upon a verdict, and was informed by said foreman that jihey had not. The court then inquired of said foreman, ‘Is there any probability of your doing so?’ and was answered by said foreman, ‘ There is not.’ The jury was by the court thereupon discharged from the further consideration of the cause, because they were unable to agree upon a verdict.”
We have delayed the determination of the case to give consideration to a question involved in it but which was not argued by counsel. That question is as to the effect of the defendant’s discharge upon the hearing of his plea of former jeopardy. Can he, in the event of a reversal of this case upon the state’s appeal, be again arrested and held for trial? Or, was the hearing given him upon his plea of former jeopardy itself a jeopardy which he may plead in bar when again brought to trial? If the latter should be the case, the question presented to us as to the effect of the discharge of the jury on the first trial would be moot in its nature, and would not be considered by us. (The State v. Rook, ante, p; 382, 59 Pac. 653.) The subject, as we now view it in the light of the authorities, is quite free from doubt, although it did not appear so when first occurring to us.
Our conclusion is that a hearing upon a plea of former jeopardy alone is not itself a jeopardy, and a discharge upon such hearing is not an acquittal. Pleas of former acquittal or conviction, or former jeopardy, are special pleas of matter not properly in
The question now recurs, Was the plea of former jeopardy sustained by the record? It is undeniable
In The State v. Allen, 59 Kan. 758, 54 Pac. 1060, the record of the former trial recited that “ the jury not having agreed upon a verdict in the above-entitled cause, the jury is discharged from further consideration of this case.” It was therefore held that the existence of no proper or necessary grounds for the discharge of the jury had been shown, but that something more should have appeared than that the jury had not agreed upon a verdict. It should have been shown that there was no probability of their agreeing. The present case, however, is different. Plere it appeared, not merely that the jury had failed to agree, but that, upon inquiry of the foreman in the presence of his fellows, he had stated that there was no probability of their being able to agree. This statement of the foreman, the usual spokesman of the panel, in the presence of the remainder of the jurors, and not dissented from by them, must be regarded as their conclusion as well as his. In addition to the inquiry addressed by the court and answered by the-foreman, it appears from another recital of the record that the jury had “ been absent some time in consideration of their verdict,” before they were again brought into the presence of the court. How long they had been absent does not appear, but we must indulge the presumption that it had been for such a length of time as to enable the court to regard it as some evidence of inability to reach a conclusion. The record further shows, in connection writh its recitals of absence of the jury for “ some time in consideration of their verdict,” and inquiry and answer as to the probability of an agreement, that the jurors were thereupon discharged “ because they were unable to agree upon a verdict.”
While in The State v. Allen, supra, it was held that the court had erroneously discharged the jury under the particular circumstances of that case, as disclosed by the record, yet the rule was distinctly announced that “the length of time a jury should be kept together and the probability of an agreement must be determined by the trial court from the facts and circumstances of the particular case, and its decision will be conclusive unless it has abused its discretion in that regard.” This statement of the rule is in harmony with the holdings of nearly all the cases. Mr. Bishop says: “The result (of the authorities) would seem to be that when he (the judge) concurs in and affirms the jury’s conclusion of inability to agree, and discharges them, the fact so found, the existence whereof nullifies the seeming jeopardy, is absolute and irreversible.” (1 Bish. New Cr. L. § 1041.) An instructive and valuable case, reviewing many of the decisions upon the subject and showing the rule to be as above stated by Mr. Bishop, and also as herein stated, is State v. Reinhart, 26 Ore. 466, 38 Pac. 822.