In Re Devlin

PETERS, P. J.

This is a proceeding in habeas corpus to determine whether petitioner has been once in jeopardy on the charges for which the county seeks to place him on trial.

The petitioner was indicted, charged with the commission of several felonies. He pleaded not guilty. His trial commenced on October 17, 1955. On that date 12 jurors were duly and properly selected, impaneled and sworn. The trial was then continued by consent to October 18, 1955. On that day only 11 jurors appeared. The 12th juror, one Vernon Bartholomew, had been arrested on a felony charge on his way to court. The trial court suggested to counsel that the case, by stipulation, proceed to trial with 11 jurors. To this, petitioner’s counsel objected, claiming that Bartholomew, in spite of his arrest, was competent to act as a juror. The trial court by consent continued the ease until October 20th. On that day, outside the presence of the other 11 jurors, the trial court interrogated Bartholomew and his counsel as to the reason why Bartholomew had not been present on October 18th. Bartholomew, directly or through his counsel, informed the court that he had been arrested on October 18th on a felony charge and was presently out on bail. Bartholomew then asked permission to make a statement. He stated that because of his arrest “I do not feel in good conscience, that I can fairly and impartially discharge my duties as a juror. I believe that the events which have occurred may influence my own deliberations and may have a distracting effect upon the deliberation of my fellow jurors. I therefore respectfully request the Court to relieve me of my duties as a juror in connection with this pending case.” Petitioner’s counsel resisted the dismissal of the juror, claiming that Bartholomew was fully competent, and that good cause had not been shown for his discharge. The trial court dismissed Bartholomew as a juror, then dismissed

[812]

the other 11 jurors, and set October 27th as the day petitioner should be tried before a new jury. In the meantime, petitioner’s counsel was permitted to enter a plea of once in jeopardy. On October 27th petitioner’s counsel moved to dismiss the proceedings on the ground that petitioner had been once in jeopardy. The motion was denied, and petitioner, who was then in jail pending trial, instituted the present proceeding to test the validity of his restraint.