The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1888-02-29

lied by law, he did not
he was present at that trial may be determined
in various ways. 1t may be determined by the
presentation of the record in that case. ana pos
testimony; but the record of that case is not in
this case. How that question was to be raised
in any form to be Of any service whatever TO
ton Of the record in that case-as-
summing that he need not make special plea
and that he could have proven the facts upon
which he relies by parole before the jury in this
case-he could not get along at all in the matter
without the production of the record of that
case. He did not offer the record of that case
in evidence in this case. He did not even offer
the Indictment evidence in this On
the contrary, when the government itself Of
fered the record as evidence in the case, he OBJ
jected TO its being introduced, and the court
sustained the objection; so that in this
we have nothing to show what occurred
when the jury was DISCHARGED in the
other case except his testimony. Thatcould not
be permitted to defeat the prosecution of this
case. He cannot raise the question in any form
except by plea, or if he did not rely upon any
other plea than not guilty. except by production
of the record and then his oral testimony contra
dieting that record if he claimed that it was not
true. So far as we may know upon that subject
by the papers, the Circuit Court-for that is the
court that / am holding now-is advised by
bill of exceptions that in a motion made in case
1865 believe that is the number, to correct the
, record in that case, his Honor, the district
judge. has made a finding upon the evidence
that it is not satisfactory. and therefors the
record stands as IL was entered; but what is the
record. as we may see from that bill of
exceptions, il consider the question at
alH Why, the record recites that he wss present
in person and by counsel, and so far a3 the Ques-
ton of presence is concerned, in considering the
matters put before the court in this case. the
writ of error. must take the record in that
case as the fullest and best evidence upon the
subject; aud that leaves under the issue of once
in jeopardy only the question whether not
Judge Woods had power to discharge that jury
without the consent of Mr.. Bernhamer. And
counsel was somewhat surprised that the
proposition could be maintained that the
judge could not discharge jury
in q criminal case after they had been held
twenty-four hours. and after he had come to the
concl usion that there was no longer arv need of
keeping them together. There are some authori-
carefully examined seem to maintain the
view of counsel, but when carefully examined
they do not sustain him. In 9Th Indiana, in
the case of Wright VS.. the State the head note
Where prisoner has been given in charge.
legal Indictment to regular jury, and the jury has
been unnecessarily discharged, he has been once put
in jeopardy and the discharge of the jury is equiva
lent to verdict of acqutal.
But sshat was the fact in that easel It was
IN Indictment for murder. The defendant
pleaded not guilty, and the jury impan-
eled, and the trial progressed until the sue
ceeding Saturday, when the court, being salts
fed that the trial could not be closed en- that
day, discharged the jury, notwithstanding the
objections of the prisoner, who insisted that the
trial should proceed to it's conclusion. The Su
preme Court of the State upon a review of the
authorities, expressing their concurrence with
some and their non-concurrence with others.
said that the court below erred in supposing
that the trial could not be. extended into
the following week; that the law
plain that it could have been continued
into the following week. notwithstanding
there was term of the same Circuit Court in
another county to commence on the following
Monday; and SO therefore the case presen ted is
one of a judge discharging the jury in violation
law. after man had been put upon trial for
his life, when the court could have proceeded
with the trial. The Supreme Court of Indiana
say that that man had been once in jeopardy,
and that was equivalent to acquittal Now
what is the other easel There case in
Eighth Indiana. which differed from this in
very material respect. The head note is:
The jeopardy in which person cannot be twice
the prisoner when he has been given in charge
legal indictment to competent jury which has been
tionary power discharge the jury whom the cause
of the prisoner has been submitted. Such discharge
will release the prisoner The that the jury after
twelve hours consultation report that they cannot
which has progressed to final Judgment is APP
pealable to this court.
The difference between that case and this is
that the prisoner was in Jail and not consulted
about It, uniformed about it. His being
suited about it would not be very material in
the view which take of it, but he was in Jail.
y.
eminent was holding him in Jail, the jury
brought in and discharged after twelve hours
consultation. The court held that that
once in jeopardy. ought not, perhaps to give
this case as much consequence as the high char
acter Of that court entities it's Judgment to re-
ceive because it is stated on the face of the
case, not having been brought. to
final judgment was not appealable
but as we have no doubt upon the point of law
involved and much future trouble and perhaps
hardship in the cause will be saved by its decis-
ion, we proceed to make it," that is TO say, the
court proceeds To give its opinion in a case which
judgment in the court below. But do not mean
to express any dissent to this case upon which
counsel mostly rely. In respect to State VS..
Wilson (55 Ind, all want to say is that the
prisoner who was indicted for murder,
and was in Jail at the time the jury
was brought in, and in his absence
been referred that meets the facts of this case.
where the defendant says that he himself is a
lawyer; that he was represented only by him
self; was present during the trial and partci
pated in the trial; could 60 and come from the
courthouse as he saw proper; was under no re-
straint on the part of the United States during
the trial. was out of the courthouse voluntarily;
say there is case in Indiana in which it has
been held that defendant so situated can plead
once in jeopardy because the court discharged
the jury upon its own motion, it's
own responsibility, and under the cir
cumstances presented to it's mind; but if
the decisions of the Supreme Court of Indiana
were strong counsel take them to be
should feel myself bound to follow the decision
of the Supreme Court of the United States L
refer to the of the United States va Jos.
Wheeler, in 9th Wheaton, opinion delivered
by Justice Story. This was capital case.
Why it would seem TO put in peril the proper
administration of justice both for the govern
ment and the State and for the citizen. if any
other rule were to obtain. Suppose that juror
in a criminal case becomes insane, il you choose;
it becomes doubtful question whether he is
capable of going Is the defendant once in
jeopardy because the judge, looking at all the
circumstances of the case, say that this
that reason discharges the jury; has the man
been in jeopardy Many other circum-
stances might be supposed; many other states
of case. 1t would be unfortunate indeed, if the
court had not the power in the exercise of it's
sound discretion to discharge the jury without
enabling the defendant to say he has been once
in jeopardy. I do not mean to say there are
any authorities to the effect that this is abso-