Kinkle v. People

Per Curiam. The question presented for our consideration is whether the court below erred in refusing to permit the issues presented by the plea and answer to be submitted to and passed upon by the jury. Counsel for the people insist that in order for the plaintiff in error to avail himself of what occurred upon the former trial, they should have been preserved by a bill of exceptions; and are only reviewable on a writ of error; and that it is an unwarranted innovation upon the practice to permit the correctness and propriety of the action of a court in discharging a jury to be passed upon by a subsequent jury impanelled to try the same cause. While, on the other hand, counsel for plaintiff in error insist that when issue is joined on a defendant’s plea of jeopardy which states facts sufficient to entitle him to a discharge, such issue should be submitted to a jury; and that it is within their exclusive province to determine whether the special facts alleged are true or not. This seems to be the recognized practice in states having constitutional provisions regarding jeopardy, similar to ours. Archibold Cr. Pl. & Pr. 113; Bishop’s Cr. Proc. sec. 816; Conklin v. State, 25 Neb. 784; Powell v. State, 17 Texas App. 345; Grant v. People, 4 Parker Cr. Rep. 527; Helm v. State, 67 Miss. 562; Solliday v. Com., 28 Pa. St. 13; Com. v. Merrill, 8 Allen, 545; [463] Foster v. State, 39 Ala. 229; People v. Fuqua, 61 Cal. 377; State ex rel. Voorhies v. Edwards, 42 La. Ann. 414; Lyman v. State, 47 Ala. 686; Roch's Case, 1 Leach C. C. 135. In passing upon the issue presented by the plea, the jury are not called upon, as contended by counsel for the people, to determine whether or not the court exercised a proper discretion in discharging the former jury; but whether, as a matter of fact, they were discharged because they could not agree. In Helm v. State, supra, the court, in discussing the office and nature of this plea, says: “ The issue on which the jury passed was clearly that of the existence of facts showing the legal necessity for the discharge. Without dwelling in detail on the various steps taken to bring the pleadings to a definite issue, it is sufficient to say that the court finally and substantially submitted to the jury this question of fact, viz., were the jury discharged on the former trial of defendant because they could not agree ? If the issue was found affirmatively, then the legal necessity was made out. If the issue was found negatively, then the legal necessity did not exist, and the prisoner was entitled to discharge. We are of opinion that the real issue was properly made up and submitted to the jury, and we are of the further opinion that the jury properly found the issue for the state.” If the facts set forth in the plea are sufficient in law to constitute a former jeopardy which entitles a defendant to a discharge, it is not within the province of the trial court to overrule it because, from facts within his own knowledge, its averments are not true. As was said in State v. Johnson, 11 Nev. 273: “ It was not for the court to decide in advance that it (defendant’s plea) could not be established. That issue was for the jury.” Lovett v. State, 80 Ga. 255; Powell v. State, 17 Texas App. 345. The plea in this case avers that defendant had been previously put upon trial for the same offense; that a jury was duly had and charged with his case, and that without his consent and without any necessity therefor, they were discharged. [464] If these facts were true, the defendant was entitled to a discharge ; and being controverted by the answer of the state, we think it is clear that the court erred in refusing to permit him to submit to the jury such evidence as was available to support the averments of his plea. It is a theory of counsel for the people, as we understand, that what occurred upon the former trial can be shown only by the record; and that if matters occurred that were not entered of record, it was the duty of plaintiff in error to preserve the same by a bill of exceptions ; while it is true that if the proceedings attending the discharge of the jury on a former trial appear of record, and it shows a proper order of mistrial, the record is conclusive of that fact and cannot be contradicted by oral testimony; and if it misrepresent the facts, the defendant must take the necessary steps to have it corrected; but if, as in this case, the record is not made up, we do not think it is incumbent upon the plaintiff in error to perpetuate such proceedings by a bill of exceptions; but may show what did occur by oral testimony, including that of the judge who presided at the trial, and the jurors who were discharged on that trial. In Pizano v. State, 20 Texas App. 189, the proceedings that occurred on the former trial were preserved by a bill of exceptions, and the court, noticing this fact in the course of its opinion, says: “ This exception, it will be noticed, was reserved to the action of the court upon the first trial. As a precautionary measure, in order to perpetuate the facts, it was perhaps well enough that the exception was then saved, but a saving of such bill at that time was by no means an essential requisite to the right to plead and establish jeopardy in a subsequent trial. For, as was said by the supreme court of Mississippi, where such exception had not been taken on the first trial: ‘ It could never have been intended that a man should have excepted in the court below to something obviously for his own benefit. He did object * * * when placed upon trial for the same offense at the next term, which was as soon as he was called upon to do so.’ ” [465] In Helm v. State, supra, the facts and circumstances attending the discharge of the jury were testified to by the presiding judge and the .jurors impanelled on the former trial. In noticing the objection interposed to the admissibility of this testimony, Woods, chief justice, who delivered the opinion of the court, says : “ But it is insisted that the testimony of the trial judge who presided on defendant’s former trial below, as well as that of the jurors who were discharged on that trial, was improperly given to the jury. We are at a loss to imagine why the facts on which the trial judge acted in considering the question of legal necessity for discharge — the facts then in his possession, and which satisfied his mind that the jury could not agree, and the facts disclosed by the jurors themselves which demonstrated that they could not agree — were riot competent evidence on the trial of the issue presented. It occurs to us that this evidence of the judge and the jurors was not only free from objection, but was the very best evidence that could have been offered.” For the foregoing reasons the judgment of the court below is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. Reversed and remanded.