United States v. Haskell
26 F. Cas. 207
U.S. Circuit Court for the Dis...
1823
Check Treatment
WASHINGTON, Circuit Justice,

delivered the opinion of the court.

The first, and the most important question which arises upon these pleadings is, is the subject matter of this plea properly pleadable in bar of a second trial of the prisoners? The importance of this point arises from the following considerations: The plea avoids stating the recorded reasons of the court for discharging the jury, and places the discharge on the single ground that the jury declared they could not agree. The district attorney had no other course to pursue, in order to bring the true case before the court, but to reply to the fact of the insanity, or the recorded reasons of the court for discharging the jury. In either case the rejoinder, by traversing the facts stated in the replication, would necessarily have submitted the truth of the facts, as well as the legality of the discharge, to the decision of a jury. To avoid so extraordinary a trial, the district attorney could do no otherwise than demur, and thus present the question which I have now to examine. Whatever name may be given to this plea, one thing is clear, that it is not a plea of au-trefois acquit; nor could the counsel have ventured such a plea, because it must have' stated a verdict of acquittal and the judgment of the court thereon: which the record, to which the plea must have referred, upon the replication of nul tiel record would have falsified. The plea indeed does not profess to be a plea of autrefois acquit, for it merely alleges the discharge of the jury as equivalent in law to an acquittal.

*211' I shall examine this question under the following heads: First, is there a single precedent to he found to support this plea? Second, can it be supported upon principle? or thirdly, on authority of any kind?

I have met with but one precedent for this plea, and that is to be found in the case of Com. v. Cook, 6 Serg. & R. 577, from which it is probable this plea was copied. But it is to be remarked, that in that case, the plea set forth truly the whole ground upon which the jury was discharged, as recorded by the court The prosecutor had nothing to do but to demur generally to the plea, and in this way to bring forward the question, whether the court is authorised to discharge the jury against the consent of the prisoner’s counsel, upon the single ground that the jury, after remaining in their room for a certain’ length of time, declared that they could not, and never should agree. The question, therefore, as to the validity of the plea, did not and could not arise, nor was it once mooted, or even alluded to at the bar, or by the bench. It is further to be remarked, that in that ease, the court directed the prisoner’s counsel to connect with the plea a motion to discharge the prisoner. This, therefore, though giving us a precedent for such a plea, is not a precedent to support it as a valid plea. In the case of People v. Goodwin, 18 Johns. 187, the propriety of the discharge of the jury, came before the court upon a motion to discharge the prisoner. In People v. Olcot, 2 Johns. Cas. 301, the same course was pursued. In the case of Rex v. Edwards, 4 Taunt. 309, the question came before the court of exchequer, upon a point reserved by the judge at the assizes. In U. S. v. Coolidge [Case No. 14,858], the court merely gave an opinion on the subject of dis-. charging the jury; no plea was put in in that case. In Com. v. Bowden, 9 Mass. 494, the question was discussed on a motion in arrest of judgment, and so it was in the ease of Kinloch [Fost. Crown Law. 16]. and in that of People v. Barrett, 1 Johns. 66. In the case of People v. Denton, 2 Johns. Cas. 275, the prisoner, on his second trial, being called upon to plead, his counsel mentioned the discharge of the jury on the first trial, and moved the court not to compel the prisoner to plead, but to discharge him. The court compelled the prisoner to plead,’ and he plead “Not guilty.” These are all the cases. This plea then is a novelty in the law, and that circumstance of itself is a persuasive argument against its validity.

2. Is this plea to be supported in reason, and on principle? We think it is not, because we consider the authority of the court to discharge the jury, to rest in the sound discretion of the court. It can rest no where else. It is. merely an incidental matter arising in the progress of the trial, in no way connected with the question before the jury, of guilty or not guilty. It is au incidental matter depending upon circumstances appearing to the satisfaction of the court, as requiring them. in the proper administration of justice, to discharge the jury. It is surely as much a’ matter of discretion, as the granting a new trial after a verdict is rendered. This is so much a matter of discretion, that the supreme court of the United States will not permit the judgment of the inferior court, in granting or refusing to grant a new trial, to be reexamined upon a writ of error. Now suppose, after a verdict of acquittal, the court should grant a new trial, upon satisfactory proof that the verdict had been obtained by the fraud of the prisoner. Would it be endured, that upon-’ a second arraignment of the prisoner, he should plead the granting of the new trial, put in issue the. fact of the fraud to be submitted to the jury, as well as the question whether the court exercised their discretion soundly in granting a new trial? Certainly it could not, and yet that is a stronger case than the present, because in that the prisoner had been acquitted by the jury. Would it be permitted to a jury to revise and correct the judgment of the court as to fact and law (for in criminal cases, they have the uncontrolled power to decide both in favour of the accused), when even a superior court refuses to exercise such a power? We think not. But let us follow out this subject to its consequences, for the purpose of testing its correctness. Suppose the ground of discharging the jury were the intoxication of the juryman so as to unfit him to perform his duty;one of the jurymen falling down in a fit; or the apparent exhaustion of the jurors to a certain degree, or one of them, from the want of refreshments: all which, and many more, are admitted, even in Cook’s Case, to be justifiable grounds for discharging the jury, and this matter is put in issue by the prisoner’s counsel compelling the prosecutor to reply, as has been attempted in this case. The question before the jury would be, whether the court exercised a sound discretion in discharging the jury, upon proof being laid before them that the juror, although intoxicated, was yet not so far gone as to be incapable of discharging his duty; that the man, though he had a fit, yet he recovered within a few minutes after the discharge; or that the exhausted jurymen were able to have continued their deliberations for a much longer time. How unsafe, how unsatisfactory would be such a course of proceeding? How absurd, how inconsistent with general principles of law, that the jury should thus sit in judgment upon the opinion of the court, to condemn it, and upon this collateral matter, to acquit the prisoner, without deciding the question of guilty or. not guilty? We are then of opinion, that the practice attempted to be introduced in this case is repugnant to reason and to law. =

3. Can this plea be maintained upon au-. thority ? So far from it. we believe that every case relating to this subject repudiates the plea, because they all consider the authority of the court to discharge the jury, as resting in the sound discretion of the court. In tlie *212Doctor and Student, an ancient book, but of high authority, this is expressly stated. It is asserted and maintained in all the New York cases before referred to, and is sanctioned, as we think, by the supreme court of this state ' in Cook’s Case. For the chief justice, after passing, what I firmly believe to be a merited eillogium upon the virtue and integrity of the state and United States judiciaries, and expressing his satisfaction that the question came on now to be decided, adds, “that other times may come when other judges might abuse their discretion.” In page 587. he says “that the moment it is made to appear to the court by satisfactory evidence, that the health of a single juryman is so affected as to incapacitate him to do his duty, a case of necessity has arisen, which authorises the court to discharge the jury.” The authority then exists when the court is satisfied of the fact; which can only mean, that this authority rests in the sound discretion of the court. But it is contended, that although the court may discharge in cases of misdemeanour, they have no such authority in capital eases; and the fifth amendment to the constitution of the United States is relied upon as justifying the distinction. We think otherwise; because (^ve are clearly of opinion, that the jeopardy spoken of in this article can be interpreted to . mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereupon. This was the meaning affixed to the expression by the common law., notwithstanding some loose expressions to be found in some elementary treatises, or in the opinions of some, judges, which would seem to intimate a different opinion. Upon this subject we concur in the opinion expressed by the supreme court of New York in Goodwin’s Case, although the opinion of the supreme court of this state in Cook’s Case is otherwise. We are in short of opinion, that the moment it is admitted that in cases of necessity the court is authorised 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 of necessity is not to be found in any part of the constitution; and I should consider this court as stepping beyond its duty in interpolating it into that instrument, if the article of the constitution is applicable to a case of this kind. We admit the exception, but we do it because that article does not apply to a jeopardy short of conviction. If we are correct in this view of the subject, then there can be no difference between misdemeanours and capital cases, in respect to the discretion possessed by the court to discharge the jury in cases of necessity; and indeed, the reasoning before urged in relation to a plea of this kind, if sound, is equally applicable to capital eases as to misdemeanours. By reprobating this plea, we do not deny to a prisoner the opportunity to avail himself of the improper discharge of the jury as equivalent to an acquittal, since he may have all the benefit of the error, if committed, by a motion for his discharge, or upon a motion in arrest of judgment.

NOTE. Another jury being called, the court, upon application of the counsel for the prisoners, decided, that they might sever in their challenges, to the amount of twenty each, peremptorily. See 1 Ohit. Or. Law. 306; 3 Salk. 81: Fost. Crown Law. 106, 107; Co. Litt 156b: 2 Hale, P; C. 26S. The panel being exhausted by the peremptory challenges, and challenges for cause,the eourtordered talisinen to beealled, and a list was made of twenty, which being also exhausted before a jury could be obtained, another list was ordered, and a jury at last was obtained. The talismen, as they were called, were interrogated (at the request of the prisoners’ counsel), upon oath, whether they had formed and declared an opinion as to the guilt or innocence of the prisoners, previous to their being summoned. Those who answered affirmatively, were challenged for canse, and set aside.

*212It was asked by the prisoners’ counsel: Will the court decide this question without either permitting a jury to examine into the truth of the facts which induced the court to discharge the jury, or without examining into it themselves? We answ’er, Yes. When the court, being satisfied that there was good ground for directing the discharge, had ordered the reasons for this direction to be entered on the minutes, the prisoners’ counsel might have requested the court to examine more particularly into the alleged insanity of the juryman, and to hear evidence on that subject. But after the record made of the grounds of the discharge, and the actual discharge, it is too late to question the verity of the facts which satisfied the court. Was it ever heard of, that evidence was received on a motion in arrest of judgment? The only question on that motion, or on a motion to discharge, would be, whether the reasons assigned by the court did, or did not, authorize the discharge? As to the question, whether the court was authorized to discharge the jury on account of the insanity of one of the jurymen, we entertain no doubt. We entirely concur in the opinion of the supreme court of .this staté in Cook’s Case, that the court ought not to discharge the jury merely upon the ground that the jury say they cannot agree, however positive the declaration may be. But that they are fully authorised to discharge in cases of necessity, and that, whether the offence be capital or a mere misdemeanour; as if the jury are so exhausted as not to be able to continue their deliberations; where the prisoner has tampered with some of the jury, or has contrived to keep back the witnesses for the prosecution; if the prisoner, on her trial, becomes insane, is taken in labour. &c.; where one of the jurymen falls down in a fit, and is. unable to proceed on his duty, or is found to be insane; if a juryman, after the jury had left the bar. went out of town; intoxication of one of the jurors, rendering him incapable of performing his duty. Other cases of necessity to authorise a discharge of the jury might be mentioned, but it is deemed unnecessary. The plea must be overruled.