Appellant was convicted of murder in the second degree, and given ten years in the penitentiary; hence this appeal. On the trial of the case, appellant interposed a plea of former jeopardy. The plea set out that the case against this defendant had been tried at a former term of the court; that pending the trial, and after all the evidence for the State had been introduced, and the court had adjourned over night, the wife of one of the jurors was reported to be very ill, the report being made to the sheriff. At about 12 o'clock of that night, the sheriff reported the fact, as communicated to him by a neighbor of the juror, Jesse Abbott, that the wife of said Abbott was taken suddenly sick, and not expected to live, said report being made to the judge at his room, some distance from the court house; whereupon the court directed the sheriff to discharge said juror, Jesse Abbott, and permit him to go home to his wife, which was accordingly done. In the morning, when court was opened, but eleven of the jurors appeared, defendant and his counsel being present, and ready to proceed with the trial. The defendant and his counsel for the first time were then apprised of the action of the judge in discharging said juror. They stated that they were unwilling to proceed without a full jury, and the court then proceeded to, and did, discharge the rest of the jury, on its own motion, over the protest of the defendant, and continued said
case until the next regular term of the court. This action of the court was properly excepted to at the time. This plea was in propria forma. On the trial of the case, the judgment discharging the jury at the former trial, and reciting the facts, was presented to the court, and the action of the court invoked on said plea, which was overruled, and the plea permitted to go to the jury, and the defendant excepted. The matters contained in the plea on the trial of the case were presented to the jury, and proof made, said proof being in substantial accord with the statement heretofore made, the main points of which were not controverted, but conceded to be true. When the jury were charged, appellant asked a charge in substance, directing the jury to find that said plea of former jeopardy was true, and to acquit the defendant thereon. This was refused by the court, and an exception reserved. The court's charge on this point was as follows: "If you find from the evidence in this case bearing upon the issue of former jeopardy that the wife of the juror, Abbott, was sick, and that her condition upon the night in question was such that it was necessary that Mr. Abbott be with her immediately, then, if you so find, you will find said plea to be untrue; but if you find that said Abbott's wife was not sick, or that if she was sick, that her condition was not such that created a necessity that said Abbott should go to the bedside of his wife, then, if you so find, then you will find said special plea true, or, if you have a reasonable doubt thereon, then you will find said special plea to be true. But, in determining this issue, you must consider all of the facts and circumstances as they appeared upon the night in question, to-wit: May 2d 1895 and not as they appear at this day." So the question as to former jeopardy, which involved the action of the court in discharing the jury, is fairly and properly presented to this court for determination. It is not necessary in this case to discuss the question as to whether it is competent for the court, under our Constitution and laws, to discharge a juror on account of the sickness of some member of the juror's family, pending the trial of a person charged with felony. The question we will consider is whether or not the court is authorized to take such action as was taken here, in the absence of the prisoner, and not in open court. Our statute provides (Art. 737, Code Crim. Proc., 1895), as follows: "If, after the retirement of the jury in a felony case, any one of them become so sick as to prevent a continuance of his duty, or any accident or circumstance occur to prevent their being kept together, the jury may be discharged." Conceding that the legislature had the power to enact this article, and conceding that the severe illness of the wife of a juror is such a circumstance as would authorize the discharge of the jury — propositions about which we express no opinion, because unnecessary — still, it was absolutely necessary to judicially ascertain the fact of sickness before the jury could be legally discharged. This apprehends a judicial finding. It is a step in the progress of his trial, and an important one, so far as defendant's rights are concerned. Mr. Bishop says: "That in all trials for felony, at every material stage
in the trial, it is absolutely necessary that the accused be present, else there can be no valid judgment against him." 1 Bishop's Crim. Proc., § 273. And he also lays down the following: "If any fact is to be established requiring or necessitating the discharge of the jury before the verdict, as the sickness of one of the panel, plainly the prisoner must be present." Sec. 272, Subdiv. 2. We also quote from the well-considered case of State v. Smith, 44 Kan. 75" court="Kan." date_filed="1890-06-15" href="https://app.midpage.ai/document/state-v-smith-7888048?utm_source=webapp" opinion_id="7888048">44 Kan. 75;24 P. 84. This was a case that came up much in the same way as the case before us, and under a statute somewhat similar to ours, with reference to the discharge of a juror on account of sickness. In that case one of the jurors was taken sick, and it was reported to the court, in the absence of the prisoner, that he was unable to be present in court during the trial, on account of his sickness. The judge thereupon, in open court, and when defendant's counsel were present (but the prisoner was absent in jail), discharged the panel, and the question of jeopardy was presented. Among other things, the learned judge, in deciding said case, uses this language: "When an order is made by a trial court discharging a jury, without verdict, to which has been committed the question of the guilt or innocence of the person charged with the crime, the record ought to show affirmatively the existence of the fact which induced such order, and justified the exercise of such extraordinary power. * * * Now, the court in this case shows that one of the causes for which the trial court is authorized to discharge a jury in a criminal case by the statute of this State happened on this trial, to-wit: the sickness of a juror. The sickness did not happen in the immediate presence of the court. The juror took sick at home, during a recess of the court, and the fact of sickness had to be established in accordance with the rules that govern in all cases when the fact is to be judicially established, and made a finding upon which to base a legal conclusion or judicial action." And, in conclusion upon this point, the court say: "We think that error was committed in determining the sickness of a juror as a cause for the discharge of the jury, in the absence of the appellant." Now, in the case at bar the action of the judge was not in open court at all. It was at night, some distance away from the court room, in the absence not only of the jury, but of the prisoner and his counsel. Not only so, but this action was taken on the ex parte statement of an officer of the court that some one had informed him that the wife of the juror, Abbott, was very sick. Could the court, under such circumstances, make a judicial finding of so important a fact in the progress of this trial — one which involved the discharge of the jury? If so, the discharge of a juror in any case would appear to be a matter entirely within the arbitrary discretion of the judge — a power which he could exercise in the absence of the prisoner, and without any judicial procedure to ascertain the fact which would authorize his action. Such arbitrary power would place it entirely within the province of a judge to discharge a jury of his own motion, and without investigation. If, in any given case, he should desire
the conviction of a defendant, and it should appear that the jury was not likely to convict, that the State had not entirely made out its case, by his arbitrary discretion he could discharge the jury, and upon a subsequent trial, the State being better prepared, secure a conviction. This was the practice of courts in the days of the Stuarts, but happily not so now. It is well settled that the court's discretion is a judicial discretion, and not an arbitrary discretion. Take this case as it appears to us from the subsequent trial, in which the facts were presented; if this investigation had been had when the defendant was arraigned on his first trial, if he had been present, and had objected to the discharge of the jury, and insisted, as he had a right to do, upon an examination as to the necessity for such discharge, record, as it now presents itself to us, we think, would have shown that there was no such existing necessity for the discharge of the juror. At a subsequent term of the court, not at the time the jury was discharged, evidence was received bearing upon the fact as to whether the juror's wife was sick or not. The testimony received relating to that fact, as we have said above, shows that the jury ought not to have been discharged, but the investigation into the facts should have been made before the jury was discharged, and not at the time the plea was interposed. The defendant had a right to be heard then, and not forced to wait until a subsequent term to ascertain whether the court had acted correctly or not. In Wright v. State, 35 Tex. Crim Rep., 158, in a case involving the question of jeopardy, this court used the following language: "Again, the record informs us simply that the court discharged the jury. We are left to inferences as to the reasons prompting him to this action. There should have been a judgment of the court finding and declaring that the jury had been kept together such a length of time as to render it altogether improbable that they could agree" — citing Adams v. State (Fla.) 15 So. 905. If the court is to find and ascertain the fact which authorizes him to act in discharging a jury, this apprehends a trial — a trial in open court, in the presence of the accused, and not an ex parte proceeding, at which he is neither present nor consenting. Because, in our opinion, the action of the court in discharging the jury was without authority of law, the defendant having once been placed in jeopardy, the judgment of the court below is reversed, and defendant ordered to be discharged.
Reversed and Defendant Ordered Discharged.