The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1888-10-12
The Fitzpatrick Case.
MEssRs. EDS.

in the Fitzpatrick case on Monday of
last week changes the law from what
has been the practice and understand
ing throughout the state for years.
Fitzpatrick of Lackawanns county,
was tried for murder. After the case
had been in the hands of the jury for
FIVE days the last day of that term of
court came and they we're discharged
because they could not agree. The
defendant was called for another trial
in the following month and pleaded
specially the former trial and the dis
charge of the jury without rendering a
verdict in favor of any further trial for
the same offense.
The Court holds that the constitu-
tioual provision shat no person shall
for the same offense be twice put In
jeopardy of life and limb" is an an
swer to the indictment, and the Judge
ment entered by the court below on
the plea in favor of the prisoner was
right and is affirmed"
If this be the meaning of the consti-
tuition then it is high time for a oonsti-
tutional amendment. The meaning of
'sbeing put twice in jeopardy" could
not have been that failure of jury to
agree is equivalent to a verdict OF
acquittal. And yet that is what the
Supreme Court says is the law. 1t is
only necessary now that q murderer
should secure one friend on jury and
he is sure to 60 scot free, for one man
can cause jury to disagree, and a
failure to agree is equivalent to an ac-
quittal.
II has been the universal practice to
try men over again in cases where the
jury does not agree, and the question
has never been raised before. Fortu-
nately for Fitzpatrick it was raised in
his case, and possibly saved his life.
Hereafter until the constitution is
changed, it will be necessary only to
convince one member of the jury in
murder cases to save the life of the
most depraved assassin, whereas here
tofore it has been necessary to con-
vince twelve men.
A LAYMAN.
Our correspondent is mistaken in
assuming that this question has never
before been ruled upon by the Supreme
Court. 1t is a point that has been
several times decided, the first time as
long ago as 1922, in the case of the
Commonwealth against Cook and
others who were indicted tor murder.
and after trial the jury was discharged
without rendering verdict, and with
out:.the cons eut of the prisoners. In a
long and learned opinion by Chief
Justice Tllghman, it was held that Sin
capital cases, the court has no power,
without the consent of the prisoner, to
discharge the jury because they have
not agreed, and declare they never can
agree upon a verdict. In cases of
absolute necessity the jury may be
discharged. "The judge says 1--WE
may conclude that III cases of consent,
fairly given, when :be prisoner is as
sisted by council, and the discharge of
the jury is intended for his benefit,
they may be discharged without Civ
ing verdict
In the case of the Commonwealth
against Clue, 1t was decided that "the
court may discharge jury in capi-
tai case, without verdict, in a case of
absolute necessity; but mere inability
to agree does not constitute such a
case; if Jury be discharged under any
other circumstances, the prisoner may
plead that he has been once 10 jeopar-
dy for the same offense."
In the case of McFadden against
the Commonwealth, tried in 1858,
Chief Justice Black said in his opinion
"that the mere continuance of cause
ia ~ithin the discretion of the court
Refusing it to a prisoner when he
gives good reasons for 1t, or granting
it to the Commonwealth without any
reason at all, is neither a defense t.
the accused party when he comes tC
be tried, nor legal assignment of er
ror in this court. But discharge O.
the jury, in capital case, after th'
trial has begun, is not continuance
of cause. 1t is the end of it. AnC
for all purposes of future protection, i
ia the same to the prisoner as an &C
quittal, unless it was done with hi
own consent or demanded by SOM
overwhelming necessity, such, for 10
stance, as the sickness or death of
juror"
The trial begins when the jury i
charged with the prisoner, and tha
happens as soon as the Jury is empan
neled and sworn. From that time h
is in jeopardy, and he cannot be trie'
again for the same o1ense, except h
be brought within the rule that ha
been clearly established by the Supre
me Court for many years. The dec
sion in the Fitzpatrick case is in hai
mony with a long line of cases on tn
same point, and we canLot see any o'
casion for a constitutional amendmen
on this subject.-EDs.
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