In re Scrafford

The opinion of the court was delivered by Brewer, J.: The petitioner claims that by the close of the August term and the commencement of the January term, before the case had been finally submitted to the jury, the power of the court to proceed further in the trial ceased, and that all procéédings had in the case subsequent to the commencement of the January term, were illegal and void; and secondly, that though such subsequent proceedings were illegal and void, yet that inasmuch as at the August term, a jury had been impanneled and sworn and testimony received, the defendant had been placed in jeopardy, and could not, under the constitution, be placed upon trial again under the present charge; and as a conclusion therefrom, that he is illegally restrained of his liberty, and entitled to a discharge. Upon the first question we express no opinion. The question is not free from difficulty, but in the view we have taken of the other matters, its decision is unnecessary. If the court has power to prolong a trial through or into two successive terms, then of course the verdict was properly received, and is conclusive until set aside by motion, for errors occurring on the trial. On the other hand, if the court has no such power, then the trial was terminated on Saturday, January 4th, 1879, by the close of the term. It is the case of a trial unfinished, not by the choice of the state, nor by the action of the court, but necessarily by the termination of the term at which the trial is pending. In such case the party has not been put in jeopardy, and may be again brought to trial upon the same charge. It is simply a mistrial—ás if a juror or the judge should die pending the trial. The failure to complete the trial is not a matter of" choice, but of necessity, and the law in such cases allows a second trial. So that in either view which may be taken of the first question, the petitioner is in custody upon a commitment issued by a court of competent jurisdiction, upon an information, and therefore, under our habeas corpus act, not entitled to a discharge. [Ex parte Phillips, 7 Kas. 48.) Let the petitioner be remanded into custody. All the Justices concurring. *