14 D.C. 393 | D.C. | 1884
delivered tbe opinion of tbe court.
Tbis cause was beard at tbe last term, but, on motion of defendant, a rebearing was granted, to be confined, according to bis own suggestion, to tbe constitutional question supposed to be raised by tbe bills of exception.
Tbe record shows that on November 14th, 1882, thirteen indictments were filed against tbe defendant, under tbe act
By these indictments the defendant was charged with embezzling the moneys of the National Bank of the Republic, of Washington, and to each he pleaded “ not guilty.” Afterwards, on his instance, the fourteen indictments were consolidated. The first bill of exceptions shows that, on the issues thus made, a jury was empanelled and sworn on November 5, 1883'; that after the Assistant United States District Attorney had opened the cases and stated in full what the United States expected and proposed to prove in relation to each and all of the indictments, and after the court had taken a recess of half an hour and reassembled, the presiding justice stated that the opening had surprised him, and that it would take a long time to try the cases; that the attorney for defendant “insisted that the cases
The second bill of exceptions shows that after these proceedings were had, namely, on the next'day, the defendant, by leave of the court, filed a special plea, without withdrawing his plea of “ not guilty.” This plea, after setting forth the discharge of the jury, states that the court, against the objection and exception of defendant, “re-empanelled and reswore the jury to try again the same cause of action, to wit, oné of the said indictments, and proceeded to try the same; * * * and said trial is now in progress, without any other or further plea having been made to the same by said defendant, than that interposed thereto by said defendant prior to said consolidation of the several indictments.” It concludes as follows: “Wherefore, the said defendant says that he has been put on his trial a second time for the same offence, hereby alleging and showing that the trial now in progress is for the same identical offence as that from the consideration whereof the‘said jury was discharged as aforesaid. Wherefore, the said defendant prays that he may have this his plea of former acquittal, and of being twice put in jeopardy for the same offence, considered and allowed by the court, and placed on the files and entered as of record in said court, as a plea of autrefois acquit and former jeopardy “to the said indictment consolidated as aforesaid.” To this plea the United States demurred, and the demurrer was sustained; the trial proceeded and resulted in a verdict of “guilty.” The defendant filed and submitted a motion for a new trial, and in arrest of judgment, upon grounds set forth in forty-six separate specifications. The ground stated in the last of these was, “because the court had overruled the plea of the defendant of former jeopardy.” At the former hearing of this cause, we held
: The proposition which the defendant intended to present by his special plea and - motion in arrest, was, that he was put in jeopardy immediately upon the swearing of the jury to try the consolidated indictments, and without the introduction of any evidence against him; and.that, when the jury was discharged, and then resworn to try one of the indictments included in the consolidation, he was twice put in jeopardy for the same offence, in the sense of the Fifth Amendment of the Constitution of the United States, which declares that no person shall “be subject, for the same offence, to be twice put. in jeopardy of life or limb.”
The same or an equivalent provision is contained in the constitutions of most of the States, and its meaning has been interpreted as well by the State as the United States courts. Two very different methods of treating the language of the provision have been used, and conflicting conclusions have been reached. Under one method, some courts have interpreted the words literally, notwithstanding they have declined to apply the same treatment to the rest of the phrase, “ of life or limh ; ” emphasis has been laid by them ’.on the particular word “jeopardy,” and they have devoted their attention to ascertaining when the first jeopardy begins. Their conclusion has. been that, when the jury is sworn, the prisoner has reached the jeopardy from the repetition of which the constitutional rule protects him. Under the other method, the whole phrase, “twice in jeopardy of life or limb,” has heen treated as a technical expression, adopted from the common law; and the constitutional prohibition has been interpreted, on that ground, to mean only that no person shall be subject, for the same offence, to be twice tried. In its application the first of these interpretations •includes the other, but it goes further. It holds, of course, that a person has been once in jeopardy, in the sense of the
■ It is clear that the ground on which it asserts that jeopardy exists as soon as the jury is sworn must be, that there is then at once jeopardy of an adverse verdict; and it should appear how jeopardy of such a verdict can lawfully exist before evidence has been, introduced. What is the position of the jury, under our practice, at that stage of the proceedings; and what would it be even if the old formality of a charge by the clerk were added after 'the oath? The processes of impaneling and swearing them have only the effect to organize and qualify the tribunal by which the prisoner is to be tried, and the charge had only the effect to inform them of the nature of the duty they were to perform in that trial. In either case they are only ready for the performance of their functions; but they have not thereby begun their actual performance. Jeopardy that they may give an adverse verdict cannot well exist before they have reached the power to consider whether to give such a verdict, or whether any fact leads toward it; and, both by the common law, and under the express provisions of our Constitution, they have no such power before any proof is presented for their consideration. So much was imported even by the formal charge, which recognized the limitations of their power, while it informed them of their duty. They were told by it what they were to inquire of, and the last words were: “ Hear your evidence.” In effect, they were informed that their inquiry was to be, whether the evidence proved the prisoner to be guilty, and their power was to find him guilty only upon such an inquiry. But the prohibitions of the
We find this view, as to the time when the function of the jury begins, incidentally confirmed by the terms in which Blackstone lays down the rule as to discharging the jury, which has been so much relied on in all the cases which maintain this contention. He says: “ When the evidence on both sides is closed, indeed where any evidence hath been given, the jury cannot be discharged (unless in cases of evident necessity) till they have given in their verdict.” 4 Bl., 360. Brief as is this statement, it is clear that the principle which the commentator had in mind was, that the jury should not be interrupted in the performance of their function, unless in cases of necessity; and it is equally clear that in his opinion that function did not begin until some evidence was presented for their consideration.
But this contention has been rested on a particular proposition in which immediate power of deliberation has no part. It is claimed that when the jury are formally “ charged with the prisoner,” or, under our simpler practice, when they are only sworn, the trial has thereby begun; and the argument from this assertion seems to be, that, the trial being one entire proceeding, which may end in an adverse verdict, jeopardy of such a verdict exists from the beginning of that proceeding. In McFadden vs. The Commonwealth, 23 Penn. State Rep., 12, Black, C. J., said: “When does the trial begin ? Not, properly, until the jury is charged with the prisoner. But the practice of formally charging the jury is not generally observed in the courts of this State, and we cannot refuse a party any of the rights which he would otherwise have, merely because a form is omitted by the public officers. We must, therefore, hold that the jury has the prisoner in charge when a full jury is impanelled and all the jurors are sworn.” In effect, the court held that the trial is begun when the jury is sworn, and that thereupon the prisoner is in jeopardy. In reference to some other mat
It is always said with great emphasis that by this formality the jury come to have the prisoner in charge, and a grim notion is suggested that he is necessarily in jeopardy until he escapes from their clutches. But the name by which text writers or judges describe a proceeding is not necessarily an analysis of its nature or effect, and we find nothing in this formula but definite information as to the work upon which the jury are about to enter, but upon which they have not yet entered. They now know what they have to try, but the trial yet lies before them. When “ their evidence,” in the language of the charge, begins, then their function begins, but not till then. Whether that function shall ever begin — in other words, whether it shall ever be in their power to consider the question of an adverse verdict — depends, not upon anything under their own control, but upon the happening of that next step, the introduction of evidence. It follows that the very existence of any jeopardy of an adverse verdict depends upon the happening of a condition precedent; and, therefore, that such jeopardy cannot be said to exist immediately upon either the swearing or the charging of the jury.
We have next to observe that the same courts which hold that jeopardy is reached when the jury is sworn, universally hold also that, under certain circumstances, the jury may be discharged and the accused put again on trial for the same offence,.either upon a venire de novo or a new indictment. They are not in harmony as to the circumstances under which this may be done, but all of them agree that it may be done if the trial is interrupted by the illness of the judge, or a juror, or the prisoner. As to other causes of discharge there has been a conflict of opinion, but most of them now concede that the jury may be discharged, and another trial had, if it is properly shown that they could
Again, this proposition seems to be discredited, and even ignored, by the very form in which the defence of former jeopardy is stated in the authorities to which we refer. All of them stand upon the ground that an improper discharge of the jury is equivalent to an acquittal; and this is formulated as the constitutional reason why a further trial is forbidden. Now, this objection does not mean that the prisoner had been in former jeopardy by being merely put on trial, placed before a sworn jury; but that, in contemplation.of law, he had been tried and consequently acquitted. The defence stands upon the prisoner’s alleged right to a verdict in the first proceedings, on the principle that an unlawful denial of that right cannot affect the benefit which should accrue to the prisoner -from its actual enjoyment. This mode of presenting the defence of former jeopardy implies that the true meaning of the constitutional prohibition is, that no person shall be subject to be twice tried for the same offence, and that the former jeopardy is the jeopardy incurred in passing through a complete trial. These implications appear very strikingly in a passage of Judge Cooley’s Principles of Constitutional Law, pp. 296, 297, to which our attention was called on the part of the defendant. . The learned author there says: “The Fifth Amendment forbids that any"person shall be subject, for the same offence, to be twice put in jeopardy of life or limb. This is an old phrase which has come down from times when sanguinary punishments were common; but the meaning is that no person shall be put on trial a second time for the same offence,after be has been tried and convicted or acquitted. But
The proposition which we have examined has assumed, in the American cases, the burden of maintaining itself on principle, and we conceive that that burden properly belongs to it. We have, therefore, treated it as an original question, and are led to the conclusion that on principle the doctrine that jeopardy is reached as soon as the jury are sworn, and without the introduction of evidence, is not maintainable. On the other hand, we are of opinion that the contrary interpretation of the constitutional rule, to which we have referred, is established by authorities by which we are bound.
The first interpretation of this clause of the Amendments was,by the legislature. Of course, the constitutional pro-tection was meant to extend to persons in the land and naval forces, as well as to other persons. This is necessarily true on broad principle, and is shown expressly to have been the intention of the Fifth Amendment by its context; for persons in those forces are specially excepted from one of its clauses, but from none of the others. Therefore, when Congress undertook to express one of these protections in the articles for the government of the army, it was their constitutional duty, and must have been their intention, to extend it completely and in its fullest measure. The form in which the particular protection under consideration was stated ip
In 1820, the meaning of this clause was considered by the Supreme Court of New York in the People vs. Goodwin, 18 Johns. Rep., 188. We find the following passage in the opinion of the-court: “The question, then, recurs, what is the meaning of the rule that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb ? ‘Upon the fullest consideration which I have been able to bestowon-the subject, I am satisfied that it means no more than this: that no man shall be twice tried for the same offence. ' * ’ * * Much stress has been placed upon the fact that the defendant was in jeopardy during the time the jury were- deliberating; it is true that his situation was critical; and there was, as regards him, danger that the jury might agree on a verdict, but in a legal sense he was not in jeopardy, so that it would exonerate him from another trial. 'He has not been tried for the offence imputed to him; to fender the- trial complete and perfect, there should have been a verdict either for or against him. In a legal sense, therefore, a defendant is not once put in jeopardy until the verdict of the jury is rendered for or against him, and if for or against him, he can never be drawn in question again for The sainé offence.” This case is referred to, not on the 'g'róund of its superior authority to the decisions of other State courts, but on account of reference to and approval of it in later decisions of United States courts. Three years after-wards; Mr. Justice Washington, sitting in the Circuit Court for Pennsylvania, in- the case of United States vs. Hasksell, 4 Wash. Cir. Ct. Rep., 402, considered a plea similar to that
A few months later, at the February Term, 1824, the ques- . tion whether a prisoner could again be put on trial for a capital offence after the jury had been discharged because they were unable to agree, came before the Supreme Court of the United States, upon certificate of division, in tbe case, of United States vs. Perez, 9 Wheat., 579. It is to be re-. membered, in estimating the meaning and force, of this case, that Mr. Justice Washington sat in it; it is probable that he understood the brief opinion delivered by Mr. Jus
In Ex parte Lange, 18 Wall., 163, it was held by the majority of the court, Clifford dissenting, that, by the action of the circuit court the petitioner was undergoing punishment a second time for the same offence, and that such a case was within the spirit of the clause in question. The case did not call for a complete exposition of this clause, or of the particular question now under consideration; but it is of importance that the court took, arguendo, the same view of the scope of this provision which we have found in the'cases and authorities referred to. Mr. Justice Miller, delivering the opinion, said: “In the case of The Commonwealth vs. Olds, 5 Littell, 137, one of the best common law judges that ever sat on the bench of the Court of Appeals of Kentucky, remarked, Ghat every person acquainted with the history of governments must know that state trials have been employed as a formidable engine in the hands of a domi
In view of these recent expressions delivered in a case in which the court proposed, in favor of the defendant, to give the most liberal application to the clause in question, we think there can be little doubt about the opinion of the
We are satisfied by these authorities, both American and English, that, at the time of the adoption of the Constitution, the rule that no person should be subject, for the same offence, to be twice put in jeopardy of life or limb, was understood by the common law to be only equivalent to the rule which forbade that any person should be twice tried for the same offence, and that this is the meaning of our constitutional rule. In'the rest of our inquiry we shall proceed on that ground. We come next, therefore, to the question whether there is any case where a discharge of the jury without a verdict is, in the sense of this constitutional rule, the legal equivalent of a trial and verdict of acquittal, and thus a bar to a future trial for the same offence.
The defendant's general proposition may he formulated as follows: When the Fifth Amendment was adopted the common law had determined definitively when a jury might properly he discharged; it treated an improper discharge as a trial and acquittal; and these rules for determining when
In that highly respected treatise, called Doctor and Student, first published in 1523, we find the following pas.sage : “ If the case happen * * that the jury can in no wise agree in their verdict, and that appeareth to the justices by examination, the justices may in that case suffer them to have both meat and drink, for a time, to see whether they will agree, and if they will in no wise agree, I think that the justices may set such order in the matter as shall seem to them by their discretion to stand with reason and conr science, by atoarding of a new inquest, and by setting a fine on them that they shall find in default, or otherwise, as they shall think best, by their discretion, like as they may do if one of the jury shall die before verdict, or if any other like casualties fall in that behalf.” Dialogue II, ch. 52. This, as Crampton, J., said in Conway and Lynch vs. The Queen, 7 Ir. Law R., 177, is “no mean authority.” There can be no question that the power was exercised at the discretion of the judges, as here stated. Yet Coke afterwards laid down a very different rule in the most absolute terms. In 1st Institute, 22'lb, he said that “a jury sworn and charged in a case of life or limb, cannot be discharged by the court, but they ought to give a verdict;” and in 3 Institute, 110, that “ if a person be indicted for treason, felony, or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must be heard, and they cannot be discharged.” Chief Justice Oockburn spoke very moderately when he said, in Queen vs. Charlesworth, 1 Best & Smith,
"Inevitably this practice led to a judicial reaction, and hence, undoubtedly, came the consultation among the judges mentioned in Carthew, 465 ; S. C., Holt, 403. The authority of this report of the matter is said by Foster to' have been questioned by the court in the Kinlochs case; but Cockburn accepted it in Charles worth's case, 1 Best & S., 501. The statement is, that the judges, “ upon debate among themselves,” came to three resolutions: “ 1. That in capital cases a juror cannot be withdrawn, though all parties consent to it. 2. That in criminal cases, not capital, a juror may be withdrawn if both parties consent, but not otherwise. 3. And that in all civil causes a juror cannot be withdrawn but by consent of all parties.” These rules are recognized in 10 Vin. Abr., c. 4; 1 Salk., 201, and 7 Mod., 1.- It appears to be clear enough that these resolutions were- not taken in the decision of a case, but simply upon consultation of the judges, with a view to establish a better and safer rule. All of them were afterwards disregarded; the first one in the Kinloch's case, Foster C. C., 16-21, which occurred among the trials under the commission after the rebellion of
About twenty-three years after the Kinlochs case, Blackstone published the fourth volume of his Commentaries, and here we find another attempt to formulate a rule. He says: “ When the evidence on both sides is closed, and indeed- when any evidence hath been given, the jury cannot be discharged, unless in cases of evident necessity, till they have- given in their verdict.” 4 Black., 360. It will be observed that Blackstone’s rule differs from Coke’s in two important respects; first, in forbidding the discharge only in case evidence has been introduced, and, secondly, in allowing it in cases of necessity. We are aware that an attempt has been made to reconcile them as to the latter point, by suggesting that in Coke’s rule the exception of a case of necessity is to be implied; but it is plain that Coke himself intended to state the rule absolutely. B.ut, finally, even this last formula laid down by Blackstone has not been followed .either in England or in this country. After quoting
Now, can it be said, in view of these variations in the rule and practice as to discharging juries, which continued down to a period so nearly preceding the adoption of our Constitution, that there was then a fixed and universally known rule of the common law on that subject; or that the rule could be called in any proper sense a rule of the common law at all ? This whole subject has, as we have already said, undergone a thorough investigation in recent English cases, and conclusions touching this question have been pronounced by judges whose knowledge and judgment of the history of the common law cannot well be questioned. After such an examination, Cockburn, C. J., said, in Charlesworth’s case, 1 Best & S., 498: “I apprehend that in no part of our procedure has the practice of the courts more fluctuated than in relation to the practice of the discharge of the jury in criminal trials;” and in Winsor’s case, 1 Q. B., 301, he said: “We are dealing here, not with one of those principles that lie at the foundation of our law, such- as the maxim that judges shall decide questions of law, and juries questions of fact; or, that the verdict of the jury, in order to be binding, must be unamimous; we are dealing with a matter of practice, which has fluctuated at various times, and which, even at the present day, may perhaps not be considered as settled.” And in Conway and Lynch’s case, even the judges who applied Blackstone’s rule strictly, and sustained a plea like that before us, spoke of the history of the rule in the same manner. Perrin, J., said: “That the rule
Now, as a matter of fact, Congress has legislated upon this very subject of discharging the jury in a criminal case; not eo nomine, but effectively. The act of April 20, 1802, 2 Stat., 159, provided that, whenever any question should occur before a circuit court, upon which the opinions of the judges were opposed, the point of disagreement should, upon the request of either party or their counsel, be certified to the Supreme Court, and be finally decided there. The decision and order of the Supreme Court were to be remitted to the circuit court, and there' entered of record and have effect. The section concluded as follows: a Provided, that nothing herein contained shall prevent the cause from pro
Notwithstanding these conclusions, we proceed next to consider whether what is alleged to be an improper discharge of the jury was, by the common law, equivalent to a verdict of acquittal; for upon this ground rests the assertion that it is equivalent to such a verdict in the sense of the Fifth Amendment to the Constitution. And here it may be observed that the argument touching the effect of an improper discharge always contains an assumption that the old rule, forbidding or restricting discharges, was adopted as a means of preventing the accused from being twice put in jeopardy. In other words, that it originated in the right of the prisoner to have a verdict in the first trial as a bar against a future trial for the same offence. In Conway and Lynch, Crampton, J. pointed out that this rule was part of a practice which for
These cases show that even an improper discharge of the jury rvas not, by the common law, equivalent to an acquittal by verdict, and could not be set up as a defence by plea ; and it is important to observe that the same authority holds that it could not therefore be alleged ás error. It was simply not matter of defence, and did not show a second trial to be unlawful. The application of this conclusion is immediate. If a discharge of the jury could not in aiiy case be counted as a first trial, with consequent acquittal, in the sense of the common law rule which prohibited a second trial for the same offence, there is no ground for holding such a discharge to be a trial and acquittal in the sense of the same rule when it is incorporated in our Constitution. In short, the alleged rule as to the discharge of a jury, with its alleged consequences, is not in any sense a part of our constitutional rule-At common law the rule that a person should not be tried twice for the same offence, and the rule concerning the discharge of a jury, whatever it may have been, were separate and distinct, and even a disregard of the one was not a violation of the other. The first was put into our Constitution; the other was not. Precisely this point was recognized by Mr. Justice Washington in Haskell’s Case, 4 Wash. C. C. Rep., 410. He there said: “ We are, in short, of opinion, that the moment it is admitted that in cases of necessity the court is authorized to discharge the jury, the'whole argument for applying this article of the Constitution to a discharge of the jury before conviction and judgment is abandoned, because the exception is not to be found in any part of tire Constitution. * * We admit the exception, but we do it because that article does not apply to a jeopardy short of conviction.” This statement is in effect a distinct denial
It was claimed, in the argument, that when the court said that the law had invested courts of justice with authority to discharge the jury “in all cases of this nature,” they referred only to cases where the jury were unable to agree; but Mr. Justice Curtis said, in United States vs. Morris, 1 Curt. C. C., 36, that they were speaking of capital cases; and several expressions in the passage we have 'just quoted show that they intended to state a rule applicable to all cases. The “circumstances” and “causes,” to which courts should look, were not intended to be restricted to the circumstances of non-agreement. The point, however, to which we refer is, that the Supreme Court must be understood to have held that this matter of the discharge of the jury was
In accordance with these decisions, we hold that no rule touching the discharge of the jury has, by implication, been incorporated in or referred to by the constitutional rule to which the defendant appeals; that the courts of the United States are invested with power to determine conclusively, in the trial of a criminal cause, when the interests of public justice require that the jury shall be discharged, and that, consequently, such a discharge is not in any case equivalent to a verdict of acquittal, or a defence against a further trial upen the same or a new indictment. Whenever this power shall appear to be dangerous in the hands of the judges, it can be restricted or regulated by Congress; for the whole subject, not being an implied term of the constitutional provision, is subject to legislative control. That it has yet proved to be dangerous, or that it is likely to be so, we do not conceive to be a matter worthy of discussion.
It will be understood, of course, that we do not regard the power to discharge a jury without a verdict as containing the slightest element of arbitrary choice. The discretion to apply it is one which the trial justice must use under a
Judgment affirmed.