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prosecution in the period of the Year Books, when the rule is said to have arisen. Kirk, supra, at 611. Fourth, Blackstone dealt with the rule governing the discharge of the jury not in his section on pleas in bar but in his discussion dealing with verdicts. Compare 4 W. Blackstone, Commentaries *335*338, with id., at *360.3 Hence, it is reasonably clear that the rule forbidding discharge of the jury arose out of the circumstances of medieval England, "when jurors of the counties where the facts occurred were summoned to give testimony at Westminster on a trial based on those facts. It seems not to have been an invariable rule and has never been found to have had any connection, in the cases at English common law, with the problem of two trials for the same offense." Kirk, supra, at 612 (footnote omitted).

Notwithstanding its origin as an aspect of jury practice, the rule against discharge of the jury became a useful defense against Crown oppression in the 17th century. Reaction to the "tyrannical practice," The Queen v. Charlesworth, 1 B. & S. 460, 500, 121 Eng. Rep. 786, 801 (Q. B. 1861), of discharging juries and permitting reindictment when acquittal appeared likely was so strong that the common-law judges

4

Interestingly, Blackstone wrote that the jury could not be discharged, not as soon as it was sworn, but only after evidence had been introduced. 4 W. Blackstone, Commentaries *360. A relatively recent edition of Blackstone, compiled from the earliest editions, indicates that the close of the evidence may have been the point at which the rule against discharge of the jury originally was fixed by that authority. J. Ehrlich, Ehrlich's Blackstone 941 (1959).

+2 M. Hale, Pleas of the Crown 294-295 (W. Stokes & E. Ingersoll ed. 1847). In the infamous Ireland's Case, 7 How. St. Tr. 79 (1678), five defendants were accused of high treason. The court permitted the jury to deliberate as to three defendants, but instructed the jury that the evidence against Whitebread and Fenwick was not sufficient to convict, even though "so full, as to satisfy a private conscience." Id., at 121. The court therefore discharged the jury of those two, declaring that it would "be convenient, from what is already proved, to have them stay until more proof may come in." Ibid. They were reindicted, convicted, and executed,

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POWELL, J., dissenting

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declared "that in all capital cases, a juror cannot be withdrawn, though the parties consent to it; that in criminal cases, not capital, a juror may be withdrawn, if both parties consent, but not otherwise . . The King v. Perkins, Holt. 403, 90 Eng. Rep. 1122 (K. B. 1698). Whether or not this strict rule was ever stringently applied, it was modified soon after it was announced. The King v. Kinloch, Fost. 16, 168 Eng. Rep. 9 (K. B. 1746). In any event, it seems never to have furnished the basis for a plea of autrefois acquit. Rather, it was viewed as a matter committed to the discretion of the trial judge, from which no writ of error would lie nor any plea in bar of a future prosecution would be allowed. The Queen v. Winsor, 10 Cox C. C. 276, 313-323, 325–326 (Q. B. 1865); The Queen v. Charlesworth, supra, at 507-515, 121 Eng. Rep., at 803-806. Thus, while the English judges had adapted Lord Coke's rule to the protection of interests later recognized in this country as within the sphere of the Double Jeopardy Clause, compare The Queen v. Winsor, supra, at 301-302, with Green v. United States, 355 U. S. 184, 187-188 (1957), they refused to import the rule into the realm of pleas in bar, and it was the latter which informed the framing of the Double Jeopardy Clause.

But it was the common-law rule of jury practice-a rule that we well might have come to regard as an aspect of due process if it had not been absorbed in this country by the

Whitebread's Case, 7 How. St. Tr. 311 (1679), despite their pleas of former jeopardy, id., at 315-318.

"In Conway and Lynch v. The Queen, 7 Ir. 149 (Q. B. 1845), the Irish Court of Queen's Bench did review on writ of error the prisoners' convictions after reindictment, holding that where the trial judge failed to state on the record the condition of necessity which had prompted the discharge of the first jury, there was an abuse of discretion preventing subsequent trial. The English Court of Queen's Bench, however, rejected this view in Charlesworth and in Winsor. Indeed, that court adopted the view of Justice Crampton, who had dissented in Conway and Lynch.

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Double Jeopardy Clause-with which this Court concerned itself in United States v. Perez, 9 Wheat. 579 (1824). Sitting on the Perez Court was Mr. Justice Washington, who one year earlier had written that "the jeopardy spoken of in [the Fifth Amendment] can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereupon." United States v. Haskell, 26 F. Cas., at 212. Mr. Justice Story authored the opinion of the Court in Perez. Nine years later he would explain in his treatise on the Constitution that the meaning of the Double Jeopardy Clause is "that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him." 3 J. Story, Commentaries on the Constitution § 1781, p. 659 (1833). It seems most unlikely that either of these Members of the Perez Court thought that the decision was interpreting the Fifth Amendment when it declared that the discharge of a jury, before verdict, on grounds of "manifest necessity" was not a bar to a retrial.' 9 Wheat., at 580. As both Justices Washington and Story believed that the Double Jeopardy Clause embraced only actual acquittal and conviction, they must have viewed Perez as involving the independent rule barring needless dis

See also United States v. Coolidge, 25 F. Cas. 622 (No. 14,858) (CC Mass. 1815) (Story, J.). Despite the view clearly expressed in Mr. Justice Story's Commentaries, there is some evidence that by the year following its publication he was beginning to consider the rule against discharge of the jury as embodying some double jeopardy concerns. See United States v. Gibert, 25 F. Cas. 1287, 1295-1296 (No. 15,204) (CC Mass. 1834).

"That Perez was not concerned with pleas in bar-and therefore not with the Double Jeopardy Clause-is supported by its recognition of the doctrine of manifest necessity. No "necessity"-for example, discovery of incontrovertible evidence that a previously acquitted person was guiltysufficed to overcome a valid plea in bar. Necessity went only to the propriety of discharging the jury. See United States v. Bigelow, 14 D. C. 393, 401-403 (1884).

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POWELL, J., dissenting

charges of the jury. The decisions of this Court throughout the 19th and early 20th centuries dealing with discharges of the jury are ambiguous, but can be read merely as reaffirming the principle of Perez that discharges before verdict may be justified by manifest necessity, without adding a Fifth Amendment gloss.

Throughout the 19th century, however, many state courts began to blend the rule against needless discharges of juries into the guarantee against double jeopardy contained in the Federal and State Constitutions.10 It was recognized that the

The Court recognizes that Perez probably cannot be viewed as a double jeopardy case. Ante, at 34 n. 10.

• Simmons v. United States, 142 U. S. 148 (1891); Logan v. United States, 144 U. S. 263 (1892); Thompson v. United States, 155 U. S. 271 (1894); Dreyer v. Illinois, 187 U. S. 71 (1902); Lovato v. New Mexico, 242 U. S. 199 (1916). See also United States v. Morris, 26 F. Cas. 1323 (No. 15,815) (CC Mass. 1851) (Curtis, J.). But see Keerl v. Montana, 213 U. S. 135 (1909); cf. Kepner v. United States, 195 U. S. 100, 128 (1904). See also United States v. Shoemaker, 27 F. Cas. 1067 (No. 16,279) (CC Ill. 1840); United States v. Watson, 28 F. Cas. 499 (No. 16,651) (SDNY 1868).

10 See, e. g., State v. Garrigues, 2 N. C. 188 (1795) (semble); Commonwealth v. Cook, 6 Serg. & R. 577 (Pa. 1822); State v. M'Kee, 1 Bailey 651 (8. C. 1830); Mahala v. State, 18 Tenn. 532 (1837); State v. Roe, 12 Vt. 93 (1840); Morgan v. State, 13 Ind. 215 (1859); People v. Webb, 38 Cal. 467 (1869); Nolan v. State, 55 Ga. 521 (1875); Teat v. State, 53 Miss. 439 (1876); Ex parte Maxwell, 11 Nev. 428, 435 (1876); Mitchell v. State, 42 Ohio St. 383 (1884); State v. Ward, 48 Ark. 36, 2. S. W. 191 (1886); People v. Gardner, 62 Mich. 307, 29 N. W. 19 (1886); Commonwealth v. Hart, 149 Mass. 7, 20 N. E. 310 (1889); State v. Paterno, 43 La. Ann. 514, 9 So. 442 (1891); McDonald v. State, 79 Wis. 651, 48 N. W. 863 (1891); State v. Sommers, 60 Minn. 90, 61 N. W. 907 (1895); Dulin v. Lillard, 91 Va. 718, 20 S. E. 821 (1895). But see, e. g., People v. Goodwin, 18 Johns. 187 (N. Y. Sup. Ct. 1820); Commonwealth v. Wade, 34 Mass. 395 (1835); Hoffman v. State, 20 Md. 425, 433 (1863); United States v. Bigelow, 14 D. C. 393 (1884); State v. Van Ness, 82 N. J. L. 181, 83 A. 195 (1912).

American treatises also included the rule against discharge of the jury under the heading of Double Jeopardy. See M. Bigelow, Estoppel 36 (2d

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discharge rule provided significant protection against being twice vexed:

"The right of trial by jury is of but little value to the citizen in a criminal prosecution against him if [the guarantee against double jeopardy] can be violated and the accused left without remedy. If the judge can arbitrarily discharge and impanel juries until one is obtained that will render such a verdict as the state demands, or the attorney for the prosecution desires, and the only protection against such oppression is that a new trial may be ordered in the court trying him, or by the court of last resort, then of what value is this boasted right?" O'Brian v. Commonwealth, 72 Ky. 333, 339 (1873).

Cf. Green v. United States, 355 U. S., at 187-188. Thus, the state courts were putting Lord Coke's rule to a use similar to that of the 17th-century English judges, but they did so with no apparent awareness of the novelty of their action-under the rubric of the Double Jeopardy Clause. Given this rather unreflective incorporation of a common-law rule of jury practice into the guarantee against double jeopardy, it is not surprising that the state courts also generally fixed the attachment of jeopardy at the swearing of the jury." Because the

ed. 1876); 1 J. Bishop, Commentaries on the Criminal Law § 1016 (5th ed. 1872); T. Cooley, Constitutional Limitations 325-327 (2d ed. 1871). See generally ALI, Administration of the Criminal Law, Commentary to § 6, pp. 61-72 (1935). The leading English criminal law treatise was to the contrary. See 1 J. Chitty, Criminal Law 451-463, 480 (J. Perkins ed. 1847).

11 See, e. g., State v. M'Kee, supra, at 655; Morgan v. State, supra, at 216; State v. Redman, 17 Iowa 329, 333 (1864); People v. Webb, supra, at 478; Nolan v. State, supra, at 523; State v. Davis, 80 N. C. 384 (1879); Mitchell v. State, supra, at 393; State v. Ward, supra, at 38, 2 S. W. 191; People v. Gardner, supra, at 311, 29 N. W., at 20; State v. Paterno, supra, at 515, 9 So. 442; McDonald v. State, supra, at 653, 48 N. W., at 864; State v. Sommers, supra, at 91, 61 N. W. 907; Dulin v. Lillard, supra, at 722, 20 S. E., at 822; accord, Bishop, supra, n. 10; Cooley, supra, n. 10.

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