WAYNE COUNTY PROSECUTING ATTORNEY v DETROIT RECORDER‘S COURT JUDGE
Docket No. 18907
Court of Appeals of Michigan
September 22, 1975
64 Mich. App. 408
OPINION OF THE COURT
1. JURY-CRIMINAL LAW-VERDICT-NONUNANIMOUS COURTS-COURT RULES.
Aсceptance by a trial court of a jury verdict of not guilty by reason of insanity was clearly erronеous where one juror expressed disagreement with the verdict on the poll of the jury (
2. JURY-VERDICT-POLL JURORS-RECANTING ASSENT.
A juror can recant a previous assent to a verdict at any time prior to his express in-court assent at the pоlling.
3. COURTS-APPEAL AND ERROR-COURT OF APPEALS JUDGMENT-RELIEF-DISCRETION-COURT RULES.
The Court of Appeals, in its discretion, may give any judgment and make any order which ought to have been givеn or made, and make such other and further orders and grant such relief as the case may require (
DISSENT BY R. M. MAHER, J.
4. CRIMINAL LAW-CONSTITUTIONAL LAW-DOUBLE JEOPARDY-TRIAL-JURY-DISCHARGE OF JURY.
A defendant has a right to have his guilt weighed finally by a tribunal once he has been placed in jeopardy; if the jury is discharged without legal justification or defendant‘s consent before his guilt or innocence has been determined, the discharge is equivalent to an acquittal and bars retrial.
Original action in the Court of Appeals. Submit-
REFERENCES FOR POINTS IN HEADNOTES
[1, 2] 76 Am Jur 2d, Trial §§ 1122-1127.
[3] 5 Am Jur 2d, Appeal & Error § 898.
[4] 21 Am Jur 2d, Criminal Law §§ 194-196, 198, 204.
Complaint by the Wayne County Prosecuting Attorney, William L. Cahalan, against Samuel G. Gardner, Judge of the Recorder‘s Court of Detroit, for an order of superintending control requesting the Court of Aрpeals to vacate a judgment of the court below and declare a mistrial. Judgment reversed, mistrial declared, and remanded.
William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Rеsearch, Training and Appeals, and Michael O. Lang, Assistant Prosecuting Attorney, for the plaintiff.
Before: DANHOF, P. J., and R. B. BURNS and R. M. MAHER, JJ.
R. B. BURNS, J. Plaintiff brings an originаl civil action seeking a writ of superintending control and requesting us to vacate a judgment of the court below and declare a mistrial.
Plaintiff‘s complaint evolves from the actions of a Recorder‘s Court Judge in the case of People v Hibbitt, Recorder‘s Court No. 73 00649. On the evening of May 31, 1973, the jury informed the court that it had reаched a verdict. The judge excused the jury until the next morning, at which time the foreman announced to the court that they had found the defendant not guilty by reason of insanity. One juror remained seated during the swearing, and indiсated upon the poll of the jury that she did not agree with the verdict. After eliciting the information that she had voted with the majority on the preceding evening, the court bound her to this previous vote over the strеnuous objection of the prosecutor. The court then ac-
It is apрarent from the great weight of authority that it was clearly erroneous for the court below to accept this nonunanimous verdict. There was no stipulation in this case pursuant to
Under
It is obvious that we cannot instruct the jury to deliberate further. However, we can determine that the jury could not reach a verdict and order a mistrial.
The Court hereby sua sponte declares a mistrial because the jury was unable to reach a verdict. The cause will be remanded to the trial сourt for a new trial.
Reversed and remanded for a new trial.
R. M. MAHER, J. (dissenting).
“.2 The jury agreeing on a verdict shall return into court and announce their verdict. A party may require a poll which shall be by the clerk asking each juror if it is his verdict. If any juror expresses disagreеment on such poll and the number of those agreeing is less than required by law, the jury shall be sent out for further delibеration; otherwise the verdict is complete and the jury shall be discharged.
“.3 The court may discharge a jury from the case because of any accident or calamity requiring it, or by consent of all the parties, or when a continuance or mistrial is declared, or when they have deliberated until it apрears that they cannot agree. The court may order another jury to be drawn, and the same proceedings may be had before such new jury as might have been had before the jury so discharged.” (Emphasis supplied.)
Not only did the trial judge, in the present case, fail to follow the court rule‘s mandate to send the jury out for further deliberation but he could not, as the majority holds, have properly declared a mistrial. There would be no “manifest necessity for the act” since there is no showing that the jury was unable to reаch a verdict. See United States v Perez, 22 US 579, 580; 6 L Ed 165 (1824). The jury in this case was not allowed sufficient opportunity to properly reаch a verdict or reach an impasse.
“Once a defendant has been placed in jeoрardy, he has a right to have his guilt weighed finally by that tribunal. If the jury is discharged without legal justification or defendant‘s consent before his guilt or innocence has been determined, the discharge ‘is equivalent to an acquittal and bars retrial‘.” People v Gardner, 37 Mich
I would reverse the trial court and order defendant released.