People v. Cage

By the Court, Niles, J.: The defendant was tried and convicted in the District Court for the County of Los Angeles, in the month of April, 1873, of the crime of murder in the' first degree. The leading question made upon the appeal relates to the legal effect of the proceedings had at a former trial of the cause in the same Court, at the June term, 1872. These proceedings, as shown by the Bill of Exceptions, were as follows: The case was regularly brought on for trial at that term. A jury was duly empaneled and sworn; evidence was introduced* and the case was submitted to the jury on the 30th of July. The jury remained together until the evening of the 2d of August. The proceedings of that day, so far as they pertain to the question before us, are shown by the following extract from the minutes of the Court:

“ In this cause, counsel for the defense having been called and appearing, (counsel for plaintiff failing to answer,) in open Court, the Court ordered the Sheriff to proceed to the door of the jury-room where the jury in this case were under deliberation, and inquire of them if they had agreed upon a verdict, to which they replied that they ‘had not, and could not agree on a verdict,’ and the Sheriff [326]thereupon reported their said reply to the Court. Whereupon the Court was ordered to be adjourned for the term and the same was accordingly done by the Sheriff.”

The term would not have expired by operation of law until the evening of the ensuing day.

The defendant’s counsel offered to prove the foregoing facts in support of a motion for a judgment of acquittal and discharge, made at the time the defendant was put upon his second trial. The motion having been denied, the defendant’s counsel tendered a plea reciting substantially the same facts, which plea the Court refused to accept. At the trial the defendant offered to prove the same facts under the plea of not guilty, and the testimony was excluded by the Court.

There is no doubt as to the general rule that whenever a person has been placed upon trial, upon a valid indictment, before a competent Court, and a jury empaneled, sworn and charged with the case, he is then in jeopardy within the meaning of the constitutional provision which declares'that ’“no person shall be subject to be twice put in jeopardy for the same offense;” and that the discharge of the jury without verdict, unless by consent of the defendant, or from some unavoidable .accident or necessity, is equivalent to an acquittal. Among these unavoidable necessities are recognized the inability of the jury to agree after a reasonable time for deliberation, and the close of the term of the Court. Unquestionably this defendant was placed in jeopardy at the first trial, and is entitted to the protection of the. constitutional provision, unless one or the other of these necessities existed.