Klock v. People

The objection upon which the plaintiff in error relies to the further prosecution of the indictment was not necessarily taken by plea, but might have been taken by way of exception to a second trial or by, a motion in arrest of judgment; and as there has been no technical trial resulting in a verdict and judgment, on which a plea of autrefois acquit or convict can be based, it may be doubtful whether the objection can be taken by plea. It might also have been objected that the record showing merely a decision of the demurrer by the court below without a judgment upon the whole record, there was nothing before us for review upon this writ of error. But no question of form was made in the court of Sessions, and none is, made here, but both parties desire an adjudication upon the question intended to be made

The. real question is, whether it is allowable for a public prosecutor after having entered upon his case by the giving of evidence to a jury impanneled for the trial of an indictment, to withdraw a juror and thus arrest the trial so as to enable him to try the party at a subsequent time, solely because he finds himself unprepared with the proper evidence to convict where his condition is not the result of improper practice on the part of the defendant, or some one acting with and for him or some overruling inevitable necessity.

The counsel for the people appeared by the course of his very able argument, to suppose that the objections taken by the accused to a second trial rested entirely upon the constitutional provision, that “ no person shall be subject to be twice put in jeopardy for the same offence.” (Art. 1, § 6,) and if he is right in his premises, he is clearly right in his conclusion that there was no valid objection to proceeding with the trial of this indictment a second time. The judicial interpretation of a corresponding provision in the constitution of the United States is, that it prohibits a second trial of a party for the same offence, after he has been once convicted or acquitted by the verdict of a jury, and judgment has passed thereon for or against him, and it does not mean that he shall not be tried a second time if the jury have been discharged without giving any verdict, or judgment has been arrested. (Story’s Com. on Const. § 1781, U. S. v. Perez, 9 Wheat. 579 .) The state constitution of 1821, was in words a transcript of the provision of the constitution of the United States as follows: “ No person shall be subject for the same offence to be twice put in jeopardy of life and limb,” and was construed to include within its terms all felonies and capital offences. The only departure from this formula in the constitution of 1846 is in the omission of the limitation confining the prohibition to offences involving the life or limb of the accused. “ Jeopardy of limb,” in the former construction referred to offences denominated in the law felonies,

To the extent of the provision referred to, the constitution, is but declaratory of the common law, which declared that no man should be twice convicted or twice put in peril of legal penalties for the same offence, and no man could be said to be within the protection of this rule unless he could sustain a plea of autrefois acquit or convict. (Broome’s Legal Maxims, 137; Bouvier’sLaw Dict., tit. “ Jeopardy.”) The civil law contains the same prohibition in the maxim ,“ Mon bis in idem,” and a party once tried and either convicted or acquitted, can not be again tried. The plaintiff in error has not been once tried so as to bring himself within the constitutional protection, as no verdict or judgment has been given. The true ground of the objection lies back of the constitution, and-is found in the principles which have been deemed essential to the full and fair protection of individuals accused of crime, and to secure to them a speedy and impartial trial, and the best means of indicating their innocence. The practice and the views of courts of criminal jurisdiction upon questions somewhat analogous to that presented in this case, have passed through some modifications. Kent, J., in People v. Olcott, (2 J. C. 301,) refers in detail to the earlier cases bearing upon the point, and while his review of the cases shows distinctly the modification and changes which have taken place in the practice of courts, it also shows the great tenderness and care manifested by the judges for the rights of the accused and to secure to them every right essential to their defence, and an anxiety to protect them against any act or omission of the government or the public prosecutor which could injuriously affect them. They have felt at liberty to interfere and arrest a trial and dispense with a verdict from a jury once empanneled only when compelled to do so by some necessity or by some improper arid fraudulent act of the accused, which would or might interfere and prevent a full and fair trial or impartial ve diet. "Lord Coke says: “ A jury sworn

One case of necessity now recognized and admitted for the discharge of a jury upon a criminal trial is their inability to agree upon a verdict, and therefore it is held that a discharge for that reason will not preclude a second trial, and the court will not, upon a second trial, review the decision of the first as to the existence of th& cause in the particular case under the circumstances attending it. Doubts were at one time entertained whether this discretion existed in capital cases, but it is now conceded in all cases to the same extent as in civil actions, (See People v. Denton, 2 J. R. 275; People v Olcott, 2 J. C. 301; People v. Goodwin, 18 J. R. 187; People v. Green, 13 W. R. 55 .) The People v. Olcott was a case of disagreement of the jury, and the decision of the court goes no farther than to hold that a- discharge of the jury for that reason did not prevent another trial. In this case, Kent, J., approves the decision of Ch. J. Holt, in the case of the two Kinlocks (Foster, 27,) refusing to allow the prosecutor on finding his evidence defective to withdraw a juror and says this “ was properly deemed an unreasonable and oppressive claim on the part of the prosecutor.” In the United States v. Perez, ( 9 Wheat. 579 ,) it was held proper to discharge a jury because they were unable to agree in a capital case. Judge Story says the power may be exercised whenever in the opinion of the court, “ taking all the circumstances into consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be defeated.” In the People v. Goodwin, Spencer, Ch. J., says: “ Upon full consideration I am of opinion that although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in cases of extreme and absolute necessity, and that it may be exercised without operating as an acquittal of the defendant;” and he applies the principle to a