The Providence news. (Providence [R.I.]) 1891-1906, 1896-05-16


the juror was communicated to the pre-
siding Justice; that the defendant, in sist-
ing upon bis right 10 be tried by the
jury so sworn and empanelled. asked
that the case be continued until the next
day in order that the real physical con-
dition OF the Juror could be ascertained,
which request was refused and tho Jury
was dismissed; that having thus been
once placed In jeopardy of his liberty he
was entitled to be discharged.
"This motion, made in the form OF q
plea, was demurred to by the Attorney
General; the demurrer was sustained by
the court and the plea dismissed.
"The defendant now pttitions for new
trial upon several grounds, but the only
one which needs 10 be considered is
whether the ruling that allegations OF the
motion to discharge were not sufficient in
law was erroneous.
''The lang usge Of the constitution OF
this State, Art. j, s. Z, is, mo person
SHALL after an acquiital, be tried for the
same offence The constitution OF the
United States, article OF amendments
says: Nor=shall any person be subject
Tor the same offence 10 be twice put in
the jeopardy of life or limb State con-
stitutions differ in the same way. These
provisions grow out of the common law
maxim that no one shall be twice vexed
for the same cause. One provision i'm
plies verdict of acquittal and the other
a liability of conviction, or, as 1t is
termed, a jeopardy, but both stand for
recognized rights-the right OF absolute
immunity from charge after an acquit-
tai and the right to have a trial go on at-
ter Ii has begun. The latter right must
necessarily be subject to exceptions in
cases where the trial may be abortive as
from the illness OF the Judge, Juror or
prisoner, inability of jury TO agree, and
other well kown causes. In such cases
there Is now no question that there may
be another trial under either form of con-
provisions are a guaranty of right, and
not limitation Of them. The fact,
therefore, that our constitution does
speak only of an acquittal does not imply
that the right OF an accused TO have his
trial proceed, except in cases of necessity,
Is taken away"
The opinion continuing, recites that
IN this country by reason of the constI-
tutional guarantees have followed
stricter rule than In England, where the
discharge OF jury against the will of a
defendant was not equivalent to
an acquittsl. After citing many
interesting cases where juries have
met with mishaps OF one kind or
another the opinion holds that In the
present case there was no evidence what
ever before the court of the illness of the
juror on which the court could exercise
It's jurisdiction and continuing says:
1.-THE question is a new one in this State
and we nave NO DOUBT OF tbe good fafth
of the judge in oischarging the jury. But
il the facts set up in the defendants
motion be true they made a sufficient
ground for discharge and the den urrer
should not have Deen sustained, but over
ruled. The defendant had the right to
judicial tinding upon the question of the
necessity for disimssiug the first jury,
md ft.f l,.aa huA - 90 Isa.lx
Consequently the second trial was i'm
proper and the verdict must be set aside
and new trial takes the case back to the
defendants motion for discharge"
AGAIN POSTPONED.
The second trial of David +. Lingane,
under the indictment found against him
for an assault with dangerous weapon,
was again postponed on account OF the
illness OF Mr.. Lingaue today. The case
was set for trial on Monday next having
been postponed by Judge Wilbur on ac-
count OF the illness of the defendant one
week last Monday.
This morning General Charles A. Will
son cad certificates from DIR. Mitchell and
DIR. Charles O'Leary certifying that Mr..
Lingane was in very weak and nervous
condition and would be unable, without
great and permanent injury, to bear the
strain that trial wopld involve.
Attorney General Dubois did not offer
any object tion to the continuation OF the
case under the circumstances, but the
question was as to how long the continu-
ance should be.
Judge Douglass suggested that the case
go over for three weeks, but the attor-
ney general said at that time he would be
engaged in another county and the assis-
tant attorney general would be with the
grand jury.
Mr.. Wilson then said that he and his
associate Mr.. Page, as well as Mr.. Lin
game would be willing TO have the case
SET down for any day in September.
Judge Doulgass seemed to think that
would be too long a postponement but
MIR. Wilson suggested that DIR. Mitchell
thought Mr.. Lingane should have long
rest.
Attorney General Dubois said that IL
seemed TO him best that II the case was
to be postponed il should be postponed so
that IT might be called up as soon as Mr..
Biugane had recovered sufficiently to
stand trial.