78 P. 802 | Kan. | 1904
The opinion of the court was delivered by
Section 208 of the code of criminal procedure (Gen. Stat. 1901, §5650) makes the provisions of the code of civil procedure relative to the
“ The jury may be discharged by the court . after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.”
The proposition involved is whether the discharge of the jury in the present case operated, in its legal effect, as an acquittal of defendant. This question was before the court in The State v. Allen, 59 Kan. 758, 54 Pac. 1060. In that case the record said: “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 held that a further prosecution could not be had. Nothing appeared in the record showing that the jury might not have agreed if given further time, nor was there any record entry of an absolute necessity for their discharge. The court said, at page 759 :
“ It does not appear upon the record that the jury could not have agreed, nor whether a reasonable time was given them within which to reach an agreement. It does not show that the jurors informed the court or held the opinion that an agreement was improbable, nor was there any finding of the court that the jury after being given a reasonable time for deliberation were unable to agree upon a verdict; indeed, it does not appear that the court exercised its judgment on the question as to whether or not there was a probability of agreement or necessity for the discharge of the jury without having rendered a verdict.”
Again:
“The court cannot arbitrarily discharge a jury, nor should it ever be discharged until it appears from the statements of the jurors and the facts and circum*389 stances of the case that every reasonable hope of agreement has vanished.” (Rage 760.)
The case of The State v. Smith, 44 Kan. 75, 24 Pac. 84, 8 L. R. A. 774, 21 Am. St. Rep. 266, was quoted, to the effect that the record ought to show affirmatively the existence of the facts which induced the court to exercise the extraordinary power of discharging the jury, in order that the constitutional rights of the accused might be preserved. The court also referred to The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, where it was held that the discharge of a jury without sufficient reason will “bar a further trial.” The court further said :
“The court cannot arbitrarily determine whether reasons for discharge exist, but that the question of the necessity for discharge was to be heard and determined by judicial methods ; and such methods certainly contemplate that a record of the findings and determinations of the court should be made.” (The State v. Allen, supra, page 761.)
In the Allen case it was decided that there must exist:
“First, an absolute necessity for such discharge; second, the court must make inquiry and find and determine that such necessity existed at the time of the discharge ; and, third, the essential facts as to such necessity and the findings of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge.” (Page 761.)
Applying these rules, it is clear that there was no compliance with them in the case at bar. The finding that the judge was satisfied that an agreement of the jury could not be had was a conclusion drawn, not from a judicial investigation on the part of the court, but from a consideration of the length of time devoted
“At the time said verdict was received the judge of the court was satisfied in his own mind that the jury had been out a sufficient length of time to consider as to their verdict, and that there was no probability that they would agree upon a verdict different from that which was returned, but this conclusion in the mind of the judge of the court existed from the length of time the jury had been engaged in deliberation, and from the inquiry the jury had made as hereinafter recited. The court made no investigation or inquiry at the time the jury was brought into court and discharged as to whether they could probably agree or not, and the court made no judicial investigation or determination of the question at that time, and made no finding thereon at the time the jury was discharged.”
The case of The State v. Hoger, 61 Kan. 504, 59 Pac. 1080, 48 L. R. A. 254, is not in point.
The ruling of the district court is affirmed.