The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-09-10


and kindred bills that they attracted lit
tie attention. The two constitutional
amendments now being advertised are of
this character. They propose important
changes in our fundamental law but
neither when in the Legislature nor since
have they enlisted the intelligent interest
of the people.
nal practice that some judges have en-
deavOred to cure for themselves. but
which still remains as an impeachment In
the path Of justice. The bill of rights
says that mo person for the same Of
fensc shall be twice put in jeopardy of
life or limb" This is a very ancient prin-
ciple, as its phraseology indicates. as no
one is now in peril of limb. We have
passed the era of cropping ears. splitting
noses and cutting off hands. We still de-
mand Il life for life, but insist that
one accused of murder shall not be tried
repeatedly. If he is acquitted on the first
trial he must not a second time be put in
jeopardy
But when does the jeopardy begin?
Tho courts have held that as soon as a
person is put on trial before compe-
tent court and the jury is sworn the de-
fendant is in jeopardy. If the jury is
discharged for inability to agree it re-
leases the prisoner in this state as COM
plctcly as an acquittal. If the trial Is In
tcrrupted by some accident. as the illness
of juror or the judge or the absence of
the witnesses, and the jury Is discharged.
the old rule of jeopardy is that it re-
leases the prisoner. since he has been In
jeopardy. In this state the discharge of
a jury before verdict for some imperative
reason docs not relieve the prisoner from
undergoing second trial. This Is COM
mon sense, but there Is room to doubt
that 1t IS common law. Somebody given
to reflection thought it was desirable to
incorporate this rational principle in the
very text of the constitution. The legis-
laturc acuuiesced probably without car
ing penny about It, and If its successor
takes the same view a popular vote will
be had upon it in 1909
The amendment proposed In this sub
jcct. If adopted. will make the constitu-
ton read: "No person shall for the
same offensc be twice put in jeopardy of
life or limb but a discharge of the jury
for failure to agree or other necessary
cause shall not work an acquittal.' This
rule has become by judgc-madc law the
prevailing rule of procedure in most of
the states. but as 1t has never been the
established rule in Pennsylvania, the pro-
posed amendment Is a desirable one and
ought to be adopted
THE BILL OF RIGHTS.
iAS lle DiII VI IISilS IloN otdiiuo' ~
provides that: mo person for the
same offense shall be twice put in
jeopardy of life or limb In case of
murder this has been very strictly con-
strued by the Supreme court. Although
it is held in ordinary criminal cases
where there is in reality the same
jeopardy as in the case of murder, that
the court may in it's discretion dis
charge the jury from the consideration
of the case, If they cannot agree upon
a verdict, yet where the indictment is
for murder this cannot be done, and
it has been decided in several cases
that if it is, it works an acquittal Of
the whole charge.
This is somewhat ancient law, hav-
ing been first laid down in a very long
and learned opinion in the case Of Com
monwealth VS.. Cook. 6 Sergeant &
Rawle, 577.
1t is recognized in that and other
cases following it that jury cannot
be kept together until they agree at
all hazards, so that if one fall sick or
go insane or be otherwise incapacitat-
ed. such a state of events has arisen
as will warrant the court from reliev-
ing the jury from the disposition Of
the case.
The distinction which is made. how
ever, is that these present matters Of
absolute necessity, whereas a disagree
ment does not. A verdict. however,
arrived at by the coercive process of
keeping the jury together until they
agree, whether they can or not, how
ever it may seem to the judicial mind.
strikes that of the ordinary man and
juror as hardly promoting justice.
But as the matter stands today, it
Is the law, and, as the Supreme court
has made the constitution read that
way, the only remedy is by amending
it to read another way. 1t is there
fore proposed to change this part of
the bill of rights so as to declare that:
mo person shall for the same offense
be twice put in jeopardy of life or limb.
but a discharge of the jury for failure
to agree. or other necessary cause,
shall not work an acquittal"
TWO LOCAL. CASES.
This community has in two instances
at least had the prevailing view of the
law forced upon it to it's detriment,
however much the defendants who es-
capped punishment by means of it, may
think otherwise. In the case of Com
monwealth VS.. Thomas Durnan, some
fifteen or sixteen years ago, very ag-
gravated homicide was committed,
with respect to which it was the sense
of very many in the community that
a capital offense had been committed,
Much to the surprise, however. of those
who had heard the case, a verdict of
murder in the second degree only was
returned, 1t subsequently transpired
that this verdict was brought about
by two of the jury who would not
agree to any higher verdict, and the
rest were obliged to come to it, be-
cause, upon their reporting to the court
that they could not agree, as they at
first did, they were charged that they
must do so or it would work an ac-
quittal
Subsequently the case of the Com
monwealth VS.. Fitzpatrick, ct al, was
tried in this county. 1t was for the
killing of James W. Baird, of Oakford
court The first time the case came
up, the jury reported that they could
not possibly agree. They We're sent
back, however, with the instruction
that they must, and We're kept together
until the last day of the term. when,
having again reported their inability to
reach verdict, they were discharged,
the court feeling justified notwith-
standing the decisions, because the
end of the term had come. At the next
term the case was again called, and
the defendants pleaded that they had
been in former jeopardy and were
therefore not again liable. There were
two counts In the Indictment. one for