The record-union., 1893-02-21
POINTS FOR LAWYERS.
Supreme Court Decision in a Fresno
County Case.
No Case Against the Defendant, Yet
the Jury Failed TO Agree-He
Must Try Again.

The Supreme Court filed in Deputy
Clerk Govan's office yesterday its de-
cision in the case of The People VS.. Wal
! ter James, defendant and appellant.
The appellant was convicted in Tulare
County of an assault with intent to COM
NIT rape, and appealed from the judg-
ment and from an order denying a new
trial. There had been a former trial of
the case at which the jury had been dis
charged by the court for failure to agree;
and at the second trial the appellant
pleaded having been once in jeopardy
On the issue of jeopardy the jury found
in favor of the people; and the main con-
tention of appellant is that the verdict
ought to have been in his favor on the
issue.
AT the first trial the record shows, after
the statement OF the jury that they could
not agree, as follows: "Whereupon the
court, after an examination of the jury,
separately, and it appearing that it was
impossible for the jury to agree, ordered
that that they be discharged from further
consideration of this case.''
Section 1l40 of the Penal Code provides
that such an order may be made, if "aC
the expiration of such time as the court
| may deem proper 1t satisfactorily appears
/ that there is no reasonable probability
that the jury can agree" ana this clause
has been held to be not violative Of the
provision of the Constitution as to
/ jeopardy. Elk parte Mclaughlin, IL
Cal. 2ll; People VS.. Gage, IS Cal 323; Peo-
/ pie VS.. Soto, 10 Cal. 62l. But appellant
contends that this rule does not apply to
/ the case at bar, on account of certain
things which transpired at the time the
| jury was discharged.
! The appellant was charged in the in
dictment with having committed the al
legged crime upon girl under II years
! old, that being the legal age of consent
under our statute. After the jury had
| been regularly impaneled at the Iirst
trial, the District Attorney put the father
| and mother of the girl and also the girl
| herself, upon the witness stand, and, evil
IDENTIFY TO the surprise OF the prosecution,
they all testified that the girl was II years
old several months before the date OF the
alleged crime.
! The District Attorney then stated to the
court that, as the case of the prosecution
! depended upon proof of the fact that the
girl was under II, it was useless to intro
duce further evidence, and no further evil
dence was introduced.
The court then instructed the Jury to
return verdict of not guilty, but also,
pursuant to the provision of Section Ills
of the Penal Code, that they were not
/ bound by his advice. The Jury then re-
/ tired, and after some time, the exact
! period not being shown, they were
! brought into court and asked if they had
/ agreed upon a verdict.
/ The foreman said they disagreed, and
! some conversation then took place be-
tween the court and the foreman of the
/ jury, upon which the appellant mainly
/ rests on the point of 'once in jeopardy"
| The substance of said conversation was,
/ in brief, this: The foreman said that
/ they did not want to render a verdict in
the case, and would ask the court to dis
charge them: that if they were discharged
without verdict it would leave the case
for the District Attorney and the court to
handle; that they did not want to be
placed in the position of acting as scape-
goats, etc.
Counsel for the appellant insisted that
the court should instruct the jury, abso-
lutely, to acquit the appellant. But the
court said it had no power to render a
verdict, and sent the jurors back to their
room, with the instruction that no evil
dence had been introduced tending to
prove the guilt Of the appellant, and adj
! vising and Instructing them that ii was
| their duty to acquit him.
In the course of couple of hours more
the jury were again brought into court,
and were again asked if they had agreed
upon a verdict. The foreman answered:
I'VE have not, and we cannot, and ask
I the Judge TO discharge u.s."
1 Counsel for appellant then moved the
court to discharge the defendant and dis
miss the action, on the ground that he had
been tried and there was an entire absence
of any evidence against him; the motion
was denied.
The court then polled the jury, and
asked each one Of them, individually, il
there was any probability of their arriv-
ing at verdict, and they all answered,
no.
One of the jurors, Mr.. Bacon. first an
swered: Yes, sir; l could arrive at YER
dict in a minute" But when the court
said: What L mean by that is, can you
get the jury to agree with you?" he an
swered: No, sir; | think it is impossi-
ble." Saying further, Mine of US are
one way, and three the other"
| Whereupon the court made the order
discharging The jury, as heretofore stated
NC doubt 1t would have been the duty
of the jury to have acquitted the appellant
under these circumstances, at the first
trial" says the Supreme Court, land, if
they had returned verdict of guilty, the
court would no doubt have granted new
trial. But we do not see that the appel
liant is in position different in point of
law from that of any other defendant
whom the jury should have acquitted but
! failed through erroneous notions of some
! OF the jurors to agree upon verdict, and
after a reasonable time, were discharged
I'VE do not see that the conversation
between the foreman and the court puts
any different phase on the matter or
makes any stronger case for appellant on
his plea of jeopardy, than if the jury had
merely said they Were not able to agree.
without assigning any reason therefor.
! AN order OF court discharging Jury
| for failure to agree upon a verdict is no
! doubt renewable upon appeal, yet it
would not be disturbed il the absence of
a clear abuse of discretion. But it is not
! claimed here that there was not a reasona-
! bic ground for the conclusion OF the court
that there would be no agreement.
Therefore, we do not see how the pres
ent case can be taken out of the rule that
the failure of the jury TO agree, and their
consequent discharge, avoids the plea OF
once in jeopardy.
with respect to the motion for con-
! tinuance, without considering the evil
! dence in detail upon the subject, we do
not think the court committed any error
in denying it. There are no other points
necessary 10 be specially noted.
The judgment and order appealed
| from are affirmed"
! The decision was written by Justice
! Mcfarland, and concurred in by Justices
! De Haven and Fitzgerald.
A PLEASANT AFFAIR.
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