103 P. 438 | Or. | 1909
delivered the opinion of the court.
Several questions are raised in this appeal; but, for the reasons hereinafter indicated, we think that there is one which decisively settles the case, and renders it unnecessary to consider the others. The jury were permitted to separate on the 29th day of October, 1907, the first day proclaimed as a public holiday. On the 5th, 6th, and 7th days of December no proclamations were issued, and these were judicial days. No judge was in attendance, and no court held on either of these days. In consequence of this failure to hold the court it stood adjourned for the term, and the jury were discharged. Section 953, B. & C. Comp., is as follows:
“If no judge attend on the day appointed for holding a court, before four o’clock in the afternoon, the court shall stand adjourned until the next day at nine o’clock; and if no judge attend on that day, before four o’clock in the afternoon, it shall then stand adjourned for the term.”
A discharge of the jury without a legal necessity therefor, before verdict, will have the legal effect of an acquittal. State v. Richardson, 47 S. C. 166 (25 S. E. 220: 35 L. R. A. 238) ; Teat v. State, 53 Miss. 439 (24 Am. Rep. 708) ; State v. Smith, 44 Kan. 75 (24 Pac. 84: 8 L. R. A. 774: 21 Am. St. Rep. 266) ; State v. Nelson, 19 R. I. 467 (34 Atl. 990: 33 L. R. A. 559: 61 Am. St. Rep. 780) ; Commonwealth v. Fitzpatrick, 121 Pa. 109 (15 Atl. 466: 1 L. R. A. 451: 6 Am. St. Rep. 757).
It is fair to the court below to say that this condition of affairs arose from an oversight on the part of the Governor in not notifying the public that the holidays would cease, so that both judge and jury failed to discover any change from the regular holiday system that had theretofore prevailed since October 29th, and which was again resumed on December 8th. But this fact could not change the effect of the law in this regard, nor the status of the defendant. It has been repeatedly held that, whether the discharge Qf the jury arose from the arbitrary act of the court, or from some mere whim or caprice of judge or jury, or from some accident or blunder, it was immaterial; in either case the result would be the same — the discharge of the defendant. In Teat v. State, 53 Miss. 439 (24 Am. Rep. 708), the rule is stated as follows: “But if an acquittal would ensue by operation of law from a discharge proceeding from tyranny, it must spring also from one proceeding from mere whim or caprice; and, if from the latter, then equally will it follow where the discharge of the jury has been caused by some blunder or accident with which the accused had no connection.”
It follows from these views that the court below'erred in rendering judgment in favor of plaintiff and against the defendant, and its action is reversed, and the cause remanded, with directions to proceed in a manner not inconsistent with this opinion. REVERSED.
