No. 2,243 | Mont. | Feb 19, 1906
Lead Opinion
delivered the opinion of the court.
This case is on appeal from a judgment of conviction of man
The alleged crime was committed in Lewis and Clark county. The third trial was had, by change of place of trial, before the district court of the eighth judicial district. Before entering upon the third trial the information was amended in the particulars suggested in the opinion of this, court after the first trial. The second trial was upon information without amendment.
The brief of appellant sets out six specifications of error, only one of which was argued orally, the rest being submitted merely upon the briefs. After considering all, we find that the one argued orally is the only one worthy of consideration and it is the one which will be noticed herein. The specification which we must consider is: “ The court erred in not sustaining the second plea of appellant, that he was once in jeopardy and acquitted through the improper discharge of the jury upon the second trial.”
Upon the second trial of the defendant the jury, after deliberating upon their verdict for about twenty-four hours, returned into court and having been inquired of by the judge, was discharged and the following minute entry .was made by the court: “In this cause the jury returned this day into open court, the defendant being present in person and by counsel; whereupon it satisfactorily appearing to the court that there is a reasonable probability that the jury cannot agree, court ordered the jury discharged from further consideration of this cause. ’ ’
The plea relied upon on the beginning of the third trial is as specified above, the formal plea in writing containing the fol
Article Y of the Amendments to the Constitution of the United State provides: “ * ® * Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. * # * ”
Section 18 of Article III of the Constitution of the state of Montana provides: “ * * * Nor shall any person be twice put in jeopardy for the same offense.”
Our Constitution includes all in the Federal Constitution on the subject, and more, and is not in any wise in contravention thereof. This question has been argued since American courts have been established under our Constitution, and has been considered from every possible standpoint, and the opinions are not consistent or reconcilable. Many of the courts have held that after the jury is sworn in a criminal ease, the defendant is in jeopardy, and that, except in a ease of necessity arising from some act almost amounting to an “act of God,” the jury may not be discharged without such discharge amounting to an acquittal. Other courts have held that the discharge lies in the discretion of the court for reasons sufficiently appearing to it. Others have held that in capital cases the dis
Our legislature in the enactment of the Penal Code has, with abundance of caution, undertaken to pass upon this matter in at least four sections. Section 2124 provides: “If, after the retirement of the jury, one of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged.”
Section 2125 reads: “Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless at the expiration of such time as the court may deem proper, it satisfactorily appears that there is .reasonable probability that the jury cannot agree. ’ ’
Section 2126 provides: “In all eases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried.”
Section 2103 reads as follows: “When the defendant has been convicted or acquitted upon an indictment or information for an offense, consisting of different degrees, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein. ’ ’
The legislative construction of what the Constitution means in regard to twice being put in jeopardy is apparent from a read
We think that the legislature meant by this latter section that a person may not be subjected to a second prosecution if once there has been rendered against him a verdict of conviction or a verdict of acquittal has been returned in his favor. We do not believe that it meant to say that “in case a verdict of conviction or a verdict of acquittal has been rendered, or if the jury has been discharged without rendering any verdict, the defendant in a criminal case shall not be prosecuted again for the same public offense. ’ ’ We do not believe that the legislature meant that the discharge of the jury amounted to an acquittal.
The authorities supporting the view that a disagreement of the jury, coupled with a failure to find a verdict, does not operate to bring the defendant within the provision of the Constitution as to former jeopardy, which view we believe to be also that of the legislature, and which we think to be in accord with our Constitution and that of the United States, are numerous, a few of which we cite: 3 Current Law, p. 984; United States v. Perez, supra; Wharton’s Criminal Practice and Procedure, 8th ed., sec. 490; Moseley v. State, 33 Tex. 671" court="Tex." date_filed="1871-07-01" href="https://app.midpage.ai/document/moseley-v-state-4891037?utm_source=webapp" opinion_id="4891037">33 Tex. 671; State v. Walker, 26 Ind. 346" court="Ind." date_filed="1866-05-15" href="https://app.midpage.ai/document/state-v-walker-7037189?utm_source=webapp" opinion_id="7037189">26 Ind. 346; Commonwealth v. Purchase (Mass.), 2 Pick. 521, 13 Am. Dec. 452; 17 Am. & Eng. Ency. of Law, 585, citations, note 1. One most fully expressing our ideas in clear language is that of United States v. Perez, supra. The ease is so similar to the one under consideration that we quote the opinion in full: “The prisoner, Josef Perez, was put upon trial for a capital offense, and the jury, being unable to agree, were discharged by the court
In conclusion, we repeat the language of the federal court in United States v. Perez, supra: “We are aware that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of the opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. ’ ’
The entry made by the court in its minutes as to its action in discharging the jury, and the reason therefor, complies with the statute and is sufficient.
The judgment is affirmed.
Affirmed.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
Counsel invites the attention of the court to certain sections of the Penal Code which were not cited by the court in the former opinion, desiring to convince us that the word “jeopardy,” as used in the legislative Acts of the state, should be understood as meaning more than former acquittal or former conviction, and saying that we have inadvertently overlooked the distinc
Section 1940 of the Penal Code is as follows: ‘ ‘ There are four kinds of pleas to an indictment or information: A plea of — 1. Guilty. 2. Not guilty. 3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty. 4. Once in jeopardy.”
Section 1941 of the same Code provides: ‘ ‘ Every plea must be oral, and entered upon the minutes of the court in substantially the following form: * >:í # 3. If he plead a former conviction or acquittal: ‘The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of - (naming it), rendered at - (naming the place) on the- day of-.’ 4. If he plead once in jeopardy: ‘The defendant pleads that he has been once in jeopardy for the offense charged’ (specifying the time, place and court).”
Section 1947 reads: “When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under the indictment or information. ’ ’
Section 1990 is as follows: “An issue of.fact arises: 1. Upon a plea of not guilty. 2. Upon a plea of a former conviction or acquittal of the same offense. 3. Upon a plea of once in jeopardy.”
Section 1356 provides: “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted. ’ ’
Section 2126 reads as follows: “In all cases where a jury is discharged or prevented from giving a verdict by reason of an
The language of the statute in these several sections is not clear, and the sections are apparently somewhat conflicting, but, when read together, are not impossible to understand. Section 1940, in the third subdivision cited, provides that “a former judgment of conviction or acquittal of the offense charged” may be pleaded, but, as we see, other sections speak of conviction or acquittal merely. The special plea of former judgment of conviction or acquittal, or of former conviction or acquittal, seems to be superfluous, for the reason that the plea of “once in jeopardy” can be made. The latter includes the plea of former conviction or acquittal and a judgment of conviction or acquittal. Certainly, if a man has been convicted and a judgment of conviction has been entered for a felony, he has been “once in jeopardy.” We think that the plea of “once in jeopardy” was added to include other cases of jeopardy than those of judgment of conviction or acquittal. In section 2126 it appears conclusively that the defendant may not be tried again if he has been discharged during the progress of the trial or after the case has been submitted to the jury, although the jury may have been discharged or prevented from giving a verdict by reason of an accident or other cause. Such a discharge of the prisoner amounts to an acquittal and brings him within the provision of section 1356, although there has not been any judgment of acquittal as mentioned in section 1940. Section 2126 seems to expressly provide for the case now under consideration, for it says that in all cases of a disagreement of a jury, the prisoner may be tried again, unless he has been discharged as aforesaid. In case of the discharge of the jury for disagreement, as in the case of granting a new trial, the jeopardy is the same continuing jeopardy from the beginning of the trial after the swearing in of the first jury, until the particular same case is
Certainly, there has not been any judgment of conviction or acquittal in the case before us. There has not been any conviction without a judgment. Has there been an acquittal without a judgment? What is an acquittal? The appellant certainly has not been adjudged to be acquitted. This question is not the simple one that it appears to be. The word “acquittal” is said to be “verbum equivocum.” For some of the equivocations, see Words and Phrases, volume 1, page 114. The definition expressed or implied in our former opinion in this case is too narrow, although supported by authority. We consider that one is acquitted if, after he has been arraigned and the trial has been begun upon a valid indictment or information, he is discharged by a competent court before verdict. (Penal Code, see. 2126.) He has been in jeopardy. Such is not the situation in the case before us.
We are also of the opinion that after a verdict or a judgment of conviction or acquittal, the defendant in a criminal case has been in jeopardy and may not be tried again for the same offense, except in a case of a new trial which has been granted or ordered. The jeopardy which is forbidden is a new jeopardy. In the case before us the defendant, when he went to trial the third time, was in the same jeopardy that he was in when the first trial was had. The continuance of the jeopardy is not a new jeopardy. A mistrial or a new trial secured by plaintiff or defendant continues the jeopardy and does not renew - it. If this cov,rt was correct in the two eases in which new trials were ordered in criminal cases on appeal by the prosecution (State v. Herron, 12 Mont. 230" court="Mont." date_filed="1892-05-02" href="https://app.midpage.ai/document/state-v-herron-6638148?utm_source=webapp" opinion_id="6638148">12 Mont. 230, 300, 30 P. 140" court="Mont." date_filed="1892-06-06" href="https://app.midpage.ai/document/state-v-herron-6638159?utm_source=webapp" opinion_id="6638159">30 Pac. 140; State v. Mjelde, 29 Mont. 490" court="Mont." date_filed="1904-02-01" href="https://app.midpage.ai/document/state-v-mjelde-6641414?utm_source=webapp" opinion_id="6641414">29 Mont. 490, 75 Pac. 87), then, on a new trial, the jeopardy would not be a new one but a continuation of the old danger. (This remark is made by the writer of this opinion on his sole responsibility, and not with the concurrence of the other
In the Perez Case cited, the federal supreme court decided that when a court discharged a disagreeing jury in a capital case, the defendant was not put again into jeopardy on a new trial. It made no exception in a supposed case of abuse of discretion. This decision of the highest court of the country is strongly persuasive. Section 2126 settles it.
The defendant here was not acquitted. He was not twice put in jeopardy. There was not a new jeopardy. The record of the court as to the discharge of the jury was statutory and sufficient as to the reason why the jury was discharged and as to the necessity for discharging them.
Mr. Justice Holmes in his dissenting opinion in Kepner v. United States, 195 U. S., at page 134, 24 Sup. Ct. 797, 49 L. Ed. 126, while being of the opinion that the defendant should have stood convicted on the trial by the Philippine appellate court, lays down certain general principles applicable to all cases. Pie says: “It seems to me that logically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause. Everybody agrees that the principle in its origin was a rule forbidding a trial in a new and independent case where a man already had been tried once. But there is no rule that a man may not be tried twice in the same case. It has been decided by this court that he may be tried a second time, even for his life, if the jury disagree. (United States v. Perez, 9 Wheat. 579" court="SCOTUS" date_filed="1824-03-23" href="https://app.midpage.ai/document/united-states-v-perez-85440?utm_source=webapp" opinion_id="85440">9 Wheat. 579. See Simmons v. United States, 142 U.S. 148" court="SCOTUS" date_filed="1891-12-21" href="https://app.midpage.ai/document/simmons-v-united-states-93207?utm_source=webapp" opinion_id="93207">142 U. S. 148; Logan v. United States, 144 U.S. 263" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/logan-v-united-states-93322?utm_source=webapp" opinion_id="93322">144 U. S. 263; Thompson v. United States, 155 U.S. 271" court="SCOTUS" date_filed="1894-12-03" href="https://app.midpage.ai/document/thompson-v-united-states-94035?utm_source=webapp" opinion_id="94035">155 U. S. 271.)”
The former opinion herein is modified to conform to the views herein expressed, and the motion for rehearing is denied.
Rehearing denied.
Concurrence Opinion
I concur in the conclusion reached in the majority opinion, but do not wish to be understood as giving assent to the proposition that in order for a defendant to sustain his plea of former jeopardy, he must always show a former conviction or acquittal of the same charge by a verdict of a jury. I think it possible that the trial court might so far abuse its discretion in discharging a jury on the ground that it has failed to agree, that the prisoner should be held to be acquitted.
Concurrence Opinion
I concur in the result.