The morning news. [volume] (Savannah, Ga.) 1887-1900, 1897-10-28
DEFENDANTS IN JEOPARDY.
How "a MistriaI saves a Murderer's
Neck in Pennsylvania.
From the PhIladelphia lime.

Neck III ESnHSS
From the Philadelphia Times.
1t is the conoensus of opinion of many
of the best lawyers in this town of good
lawyers that Luetgert cannot again be
tried on the indictment charging him with
the murder of his wife. This is based
upon the provision Of estonstitution of
the United States that a man cannot be
twice placed an jeopardy of his life. 1t
is needless to point out the wisdom Of
this constitutional declaration. There
have been, however, various constructions
of its full meaning as regards trials for
murder. Luetgert was subjected to
trial If he had been convicted his life
would have paid the forfeit. Thus his life
was placed in jeopardy. The jury did not
reach. an agreement. So far as we can
learn from the telegraphed newspaper
stories Luetgert's counsel did not, by
affirmative action agree TO the discharge
of the twelve true men, three of whom
gave the prisoner the benefit of the nat
ural doubt that arose in their minds by
reason of the fact that there was no
corpse in evidence; by reason OF the fact
that they were asked to hang man, to
use sentence from Rudyard Kipling's
poem, THE Vampire" based on Philip
Burne-Jones' famous painting on
"A rag dnO a bone HAlQ q Hduk VI udlI.
The right to try a man a second time
on the same charge of murder has been
well settled in this state by the supreme
court in the case of the commonwealth
VS.. Peter Fitzpatrick ct al This decision
was rendered in october, 1883, Its sylla-
bus is as follows: rsfJus
/. Jeopardy, within the meaning of the
clause in section 10, article L., of the con-
stitution. is the peril in which defendant
is placed when he is regularly charged
with crime before q tribunal properly or
ganiZed and competent to try him.
2. In an indictment for murder, there
fore, the court has no power to. discharge
a jury after the trial begins, without a
resulting discharge of the prisoner, unless
it be done with his consent or an absolute
necessity has arisen which requires it.
3. The court has power TO extend the
term until trial can be concluded; where
fore, the mere inability of the jury to
agree within a few hours or days of when
the term is about to expire, does not raise
such a necessity.
In the course of this opinion, which is
to-day the law of Pennsylvania, the court
used this languages; ''At what step in the
prosecution is a person put in Jeopardy,
to which he shall not be subjected the sec
ond time for the same offense? IN
doubtedly when the trial begins, in which
he is charged with the capital offense
the prisoner. 1t is so charged as soon as
the twelve jurors are duly empaneled and
sworn" And again in the same opinion:
"A jury so charged can be discharged only
% when the prisoner voluntarily consents;
(2) in cases of extreme necessity. The fact
that the jury had not agreed and declared
that they cannot agree, is not a sufficient
necessity But it is urged that the dis
charge of a jury Is within the exercise of
a wise discretion. How is the court to
reach a conclusion that 1t is useless to de-
tain a jury? There is nothing for it but
the declaration of the jurors that they
never can agree. Now, nothing is more
delusive that that kind of evidence. The
language of the constitution is impera-
tive"
Again in the same decision-and when it
was rendered such eminent jurists as Chief
Justice Gordon and jus tees Paxson, Ster-
rett Green and Williams were sitting
this positive language is used: Jeopardy
is the peril in which a defendant is put
when he is regularly charged with crime
before tribunal properly organized and
competent TO try him. He must, under
such circumstances, submit the suficien-
cy of his defnse TO the decision of a Jury
of his peers He is in their hands, ex-
posed to the danger of conviction with
an it's consequences; or in the language of
the bill of rights, he is in jeopardy From
this jeopardy he is to be relieved if re-
lieved at all, by the verdict of the jury
Unless some overriding necessity arises
after the jeopardy begins, the trial must
proceed until it ends in conviction or an
acquittal. In a capital case, therefore, the
court has no power to discharge a jury
without the consent OF the defendant, I'M
less an absolute necessity requires it. The
mere inability of jury to agree within
few hours or days is not such a neces-
sity.'''
That is the law Of Pennsylvania to-day
as announced by its highest judicial tri-
bunal. 1t may have been construed diff
ferently in different states. but bear in
mind that the Pennsylvania decision Is