EX P;\.RTE ULRICH·
587'
ter of calculation and knowledge, to be obtained by inspection. Mr. St. John professed to have that knowledge, and made false statements about it, for which the jury held him liable in the sum of $5,000. That was totally different from the $18,000 which he actually received as his reward from Gillespie for helpingto.sell this land. I am of the opinion that the motion for a new trial should be denied. Ordered accordingl!y.
·
& parte
ULRICH.
(D(.strict Oourt, W. D; MI880Uri,. W. D. June 28, 18OO.) 1. CoNSTiTUTIONAL LA.w-DUE PROCE8S OIr LA.w-FORllIER JEO}'ARD)'.
Since'it is a priuciple of the co;mmon law that no one Ilhall be twice placed in jeopardy for the same offense, the trial and commitment of one who has already 1:Ieen tried. and acquitted of the same offense Is depriving him of his liberty "with· out due process of law," within the meaning of Const. U. S" A,mend. 14Where, after a person has pleaded not guilty, and been put on trial for a felony, and evidence has been introduced by the state, the judge adjourns the case to take up the trial of another set for that day, and on the adjournment day, on the ground that ;be is unwell, discharges the jury without the prisoner's consent, the discharge is equivalent to an acquittal; and he cannot De again tried for the same offense. OIr JURy-FORMBR ACQUITTAL.
2.
3.
SAMB.
CQnst. Mo. § 23 of the bill of rights, prpviding that "no pers,on, af1<llrhaving been once acquitted by a jury, "shall again be put in jeopardy, but, if the jury "fall to rendel'a'verdlct, the court before which the trial is had may, in its discretion, disoharge tqejury, and commit the prisoner for trial at the .next term of the court," etc., does not give the court a right to c.ommit aprisoner for. a second trial after dlscharging the jury without legal cause. ' " Const. U. S. Amend. 14, providing that no "state" shall deprive any person of life, liberty, or property without due process of law, applies equally to the act of a state judge. .
·· SAl\I1!l.
At Chambers. On habeas corpus. Oritten,den, Stile8, & Gilk88on, fot' petitioner. A. If.. Strother, for the State. PHILIPS, ,J. This application for writ of habta8 corpus grows, tially,<ont of the following state of facts: The petitioner was indicted by the grandjury in the state criminal court of J acksoll county, Mo., for the crime 0f bigamy. He was arraigned, and entered a plea: of not guilty. The case coming on for trial on the 21st day of April last past, a jury was duly impaneled and sworn to try the case. The opening statement of counsel was made to the jury, and the state introduced and examined one .witness for the prosecution on that day. The trial of the causew:as then adjourned to the usual hour of the following day. On the 22d, of .April the, trial was resumed ill, the forenoon, and a ber of witnesses examined on the part of the state, when certain record evidebee was' offered byt:he· state, which; would have about concluded the evidenee on its part. Discussion arose as to the admissibility of this .record. evidence about the noon hour., On suggestion by counsel
588
FEDERAL REPORTER,
vol. 42.
that the court might then adjonrn until after dinner, the court observed that there was a matter of small importance, or something of that tenor, to conie up that afternoon, which would probably occupy a few hours, and said he would adjourn the further trial of the case until nexttnorning at 10 o'clock, which was [;(0 ordered without objection. the prisoner was under the nsual bond for his appearance, the court, according to what seems to be its practice, after the trial of an accused on bail has begun, ordered the prisoner into the custody of the marshal, who placed him in jail. On the following morning, the 23d, counsel for the prisoner appeared in court at the designated hour of said adjournment, expecting to proceed with the trial of said cause, when of the day prethey discovered for the first time that, on the ceding, another case, State v. Wheeler, had been taken up fat trial before a jury before another judge specially seclected therefor, and was then in The regular judge of the court was nqt then present, nor was into court.. The prosecuting,attorney announced tdihe' jury and witnessesthat they need i10t attend c6urtfu:J;ther jn the case of State v. Ulrich, until 2 o'clock P. M. of that day,- whereat jury alid"Witn:esses dispersed, without more.. About 3 o'clock P. M. of that of the court. appeared, and, the trial of the Wheeler Case yetb>eingin progress, announced the case against Ulrich would not be called until the following morning: This was repeated until Satur26th. day of April. The Wheeler trial was concluded the 25th of April. During aU these acts and adjournIilents)heprisoner wllsnot present, and was confined in jail,and gave n<j'cdrisent"to the pro'6eedings. On: the morning of the 26tq the court announced that he was not feeling well enough to proceed with the trial, olthe prisoner's counsel, that jury III the case be finally dIscharged therefrom, and the cause be contmued for further trial until the 26th day of May, following, before another jury; and the prisoner was remanded to jail. The evider:lceshows that, after the court made the foregoing orderl it remained in session an hour or so, transacting other business, and then adjourned court ltntil the 5th day of May following. On the 2flth day of May, the day the Ulrich down for another trial, counsel for prisoner appeared; and fUedmotion in the nature of a plea in bar, asking that the-defendant b6 discharged on the ground that hehad already been placed in jeopardy, and, in legal effect; acquitted, by the former proceedings in the case. This motion.was overruled, and the defendant again put to trial befo10 He was found guilty, and sentenced to It term of imprisonment in the state penitentiary for two years. After an ineffectual motkm in iarrestand for new trial, the prisoner has presented to this court his petition for discharge by the writ of habeascorpU8,on tbe ground tbat his-imprisonment is iUjviolation: of the fifth arid, ftmrtllenth amendments. to: the: federal constitution. . . By <A.. approved Feb. 5;1867, jurisdiction is ·conferred on United,i Sfates district courts, and jildResthereof, "to grant writs of Mbeaa.. corpusinallcases where any pe't'sonmaybe restraiued of his or
,
EX PARTE ULRICH.
589
her liberty in violation of the constitution, or of any treaty or law of the United States." To bring the application, .therefore, within the terms of the act, it must be made to appear that the petitioner is restrained of his liberty in violation of the constitution of the United States. Assuming for the present that the first submission of the petitioner's case to the jury, and the jury's discharge by the court, was, in legal effect, a discharge or acquittal of the defendant therein, is the further confinement in jail violative of any right of the petitioner secured by the constitution of the United States? The fifth amendment to the federal constitution provides that,"No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment ,or indictment of a grand jury. * * * Nor shall Hny person be subject, for the same, offense·.t() be twice put in jeopardy of life or limb. Nor shall be compelled, in anY criminal case, tobe Ii witness against himself, nor be deprived of life, liberty, or property without dueprocefls of law," etc.
rt is the settled construction of this amendment that it was not desiglled to operate as a limitation upon the state governments in referencl) to their citizens, but was adopted exclusively as a restriction upon federal power. Barron v. City oj Baltimore j 7 Pet. 243; Fox v. Ohio, 5 How. 434; TwitcheU v. Com., 7 Wall.321. The fourteenth amendment declares that"All persons born or naturalized in the UIJited States, and subject to the jUl'isdiction thereof, are citizens of the UnIted States, and of tbe state wherein they reside. No state shall make or enforce any law which shall abridge the pri vilegCfl or immunities of citizens ,of the United States; nor sh,all any state deprive any person of life, liberty, or ,proper,ty ,without due process of law, nor deny to any person within its jurisdiction equal protection of the laws." It opens with the lmggestive declaration of ,the dual citizenship of all persons, native and naturalized, and then, in recognition of the maxim of free governments that the obligation of allegiance is correlative with the duty of protection, it declares that no state shall by 'any law abridge arty of the privileges or immunities secured to the citizens of the United nor shall the citizen be deprived of life; liberty. or out due process of law. What is the ptlrportof the term "due process of law?" Kent, in his Commentaries, says: "It may be received asa proposition universally understood and acknowl:" t'dgpd throughout this country that no person can betaken or imprisoned,or disseised of .his fret-hold or estate, or exiled. 91' deprived of life" liberty, or property, * * * unless by the law 'ofthe land. '" * * The wurds 'by the law of the land,' as used originally in Magna Chm·ta, .ereneetothissubject,'are understood to mean due 'process of *, '" .'" better and larger definition of 'due process/of is that itmeanslaw f in its regUlar conrseofadministration through; courts, of jiIstice.,. V6lume' 2, p.13.,· ,'f " , " >' '>.;
This is an express limitation upon the powers of the state government,
'1:-': ;< f.
";"
So the supreme court of the United Sta,telj, 00.,18 How. 272-276','spea'king of
Murray . , . " ,'" '."
Q90
FEDERAL R:Jl:rORTER,
, "The is a restr.aint on the legislative, as well as on the executive and jUdicial.'powerl! of the government, arid cannot b,e so construed aato leave congress freetotnake any process due process of law by its mere will. To what principles. then, are we to resort to ascertain whether· this process enacted by congress'is due process? To this the answel'luustbe twofold. We must examine the constitutjon itself to see whether this process be in conflict with any of itl! provi'sions. ,If not found to be so, we must look to those settled usages and modes'of proceeding ,existing in the common and statute law of England before the emigration of our ancestors, and which are shown Dot to have 'bElen unsuited to their civil and political condition by having been acted on by them after the settlement of this country." As there is, confessedly, nothing in the constitution itself in conflict with the idea that the citizen cannot' be twice placed in jeopardy for the same criminal offense; in following the direction of the supreme court, we will find no of the common law, grounded upon the great l'ock oftheMagna Chdrla,more firmly rooted than that no man shall be twice vexed with prosecutions for the same offense. wl1s as much "the law of the land" as that he should not be tried or condemned without process of law, andttle judgment Of his peers. Mr. Justice MILLER, in EzparteLange, 18 WRll. , "If there is anything;settled in the jurisprndence of England and America, it Is that no man can be 'twice lawfully punished for the same ofi'ense. ... ... ... principle tinds expression, in more than one form in the maxims of the common law. · · lie In the criminal law the same principle, more di· lie, '; lie is expressed in the Latin, 'nemo bis punitu1' pro eadem,delicto,' or,as COke has it, · riebe.t biB puniri P1'O uno delicto.' · · ".Thecommunlaw itot only prohibited a second punishment for the same offerlse, 'but It wentfllfLher, and' forbid a second trial for the sallie offense,whetber the accuse<! had slifi'ered 'punishment or not, 'and whether in the trial he had or convicted." theia,nguageof MILLS, J., in Com. v. Olds, 5 Litt. (Ky.) 137. as follows: ' , ,:', ·, "Every person acquainted with the history of governmimts must know that state trials have been employed asa formidable engine in the hands of a dominant administration.."';' lie, To prevent these mischiefs the ancient common law, 8S ;well as Ohartaitself, provided that one acquittal or conthe in other wor<Lt. that the accused should alviction have 3"'oUI'OO him of availing himself,of the pleas of aut1'efois acquit and autrefois "fo perpetuate this wille, rule, so favorable and nect-ssary to the liberty of'thl' citizen in a government like ours, so frequently subject to changes in popular feeling and llentiment, was the design of introdUci,ng)ntoour the clause In question." Andtesponsivetothlssame authority, and in recognition of the universality orthl:\ question, the learned judge in Btu,te v. Cooper, 13 N.J. Law, Mi, said,: "; , ' , "Our COll,rts of justice would have recognized and' acted upon it as one at the common law without any constitutional p,fovision. .;,lIe,' .A.nd.lI}I who are conversant with courts of justice · lie · must be satisfied that this great principle forms one of the strong bulwarks of· liberty. .. . , StdhesrlpnlIrie cq\lrt qf Jhe United'
591
"It is contrary to the nature and genius of our governnient to pu'nish an .individual twice ior the same offense." Moore v.People, 14 How.2L That this role of universal justice and law owes not its origin to constitutionaldeclarations, but was designed only to emphasize and preserve it, see Lee v. State, 26 Ark. 260; Stalev. Snyder, 98 Mo. 5.55,11 S. W. Rep. 1036; Ex parte Snyder, 29 Mo., App. 261. And Cooley, in his work on Con!;ltitutionaltimitations, (section 36,) says: " "We must Dot commit the mistake of supposing that, because individual rights are guarded and protected by thew, [constitutions,] they must also be cODsideredas owing their origin ,to them. These instruments measu're the powers of the rulers; but they do not measure the rights ·of the governed." As expreasive of deeply rooted this principle of thllcommonlaw has ever been in the minds and convictions of the .A.tiHlricaD people, as their coronIOn, inestimable, heritage of liberty from the arid usagesof'the rilothercountry, the colonists, long before the adoption of the constittition, incorporated the ,provision respecting process' of .law, or. the law of the land, hi all their local governinedtb;' arid there not beena constitution, state or federal, adopted;n: this cOI1tinellt, which does' Dot contain the provision against double tria.ls and punishments, or punishment after acquittal. It is imbedded in the very bonework of our political and judicial system. <:puosel for the state is" to admit this historictrllth, he ingeniously Bought on the argument of this cause to maintain the proposition that the term"due process oflaw," as employed in the .fourteenth amendnent;"a,s pot designed byits framers to Axtend to and embrace thei!:lstance of a double jeopardy in a criminal prosecution, .for 'the the same provision found in the fourteenth amendrrient also appears in the fifth amendment, iIi which is the clause prohibiting the placing of the citizen in jeopardy twice for the same offense; and he relies upon the ,statement of Mr. Justice MATTHEWS in Hurtadov. California, llOU. 8;,534 et 8eq., 4 Sup. Ct. Rep. 111, 292, to the effect that the term "due,prdcess oOa" " is employed in the fourteenth amendment in,oo different sense .lromthat in the fifth amendment, and that, if "it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect." The contention of counsel is that, by parityM reason, inasfuuch as the fifth amendment contained lJ.lso an express provisionagaiQst again vexing the citizen with prosecution after having .once been in jeopardy, it would have been superfluous and,repetitious to cover the same right under the clause respecting due process oflaw. It must be confessed that some expressions of the learned juStice in 'lion give color to such inference. But a closer examination of the context, as well as the whole debate on the question involved in that ease, can leave little doubt that such first impression is quite superficial.,' A brief review of· the Califcn1da case, we think, will make this clear.. The constitution of the state of Caiifornia authorized the];rosecution of persons on il'lformation. Hurtado was'accordingly, on information, prosecuted and convicted of the crime of murder. He applied to the
.592
court of the Si;ates to review the judgment of the state court, on and conviction was not due process of law, the groundAhat within the Qlthe fourteenth amendment. The argument of Mr. Justice MATTHEWS, who wrote the majority opinion of the court, was .to show that the or indictment of a grand jury in cases of and fixed in the common law of England, felony was n()t sO as it existed at the of the adoption of the federal constitution, that it be regarded,3!l a part of law of the land, within the meaning ()f ,"due process ,ofIaw." The opipion reviews the history of Magna Ohar/4"and the comments thereon by Coke and other English authorities, and judges; to show that presentment and indictment were not a law as secureli by Magna Charta, ,and interwoven by in the of the ·courta of common-law Jurisdiction; and ,.the fifth amendment provideqthat no person peQel!lto answer for a capital or otherwise infamous crime unless indictment of a grand jury !,it W8.$ not included within ,the t,erw-s,o! "quI;! process of law," as employed in the constitution, as la.wis process according to the law of the land as it exyiimrpemoriaL nsage in England, andwastt:anaplanted by the oq thiscontinentasa part of our heritage ()f liberty. Then, "J!rgUcr!uQ" ,the justice says: ' . "The.natural .and obviol18inference is that, in the sense ot the constitution,' due process of law', was not meant or intende<lto include, BID vi termini, thec()nstitutioD and prOQedure of a grand jUl'yin any case. The conclusion is,eql,lal,ly'ifllesistible, when. the same phrasewaE! employed in the fourteenth amendment to restrain the action of the states, it was used in the same sensei' and' with no greater extent. " . ;Atidtben, as evincive of the fact that it was in the mind of the court to exclude. the right to !lopresentmentby indictment from the term "due process of>!aw, " because such right was not a part of the law of the land in England, the opinion proceeds: . "Dueproctlss of law in the latter [the fifth amendment] refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the ·. In the fourteenth amendment, by parity of reason, it refers to land in each state, which derives it$ authority from the inherthat ent and rellflrvedl'0wers of the state, exerted within the limits of those fundamentaltiHn'ciples ofIibei·ty and justice which lie at the base of all our civil andpoIitiCal instItutions.-"·' proceeds to show that, by the term "due process of · law.," ittwas d;t-e, desigriofthe amendments to irrevocably secure the citizen or power enforcing its edicts to the injury to the preser. of the ,'Pl;lfSOllS and property of its subjects;" ,.of'"pu,blicandprivate rights, notwii;pstanc;J.'ing the representativlt Mour. politiclil institution!!." The opinion then quotes with appro\)l,i-Uon langua.ge ofthe supreme court of Missilisippi in Br01.lYfl, V. Q"hin:iBsioners, 50 Miss. 468:
EX
PARTE ULRICH.
593
"The principle does not demand that the laws existing at any point of time shaH be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jnrisprnd"nce, of which ours is a derivative, has al ways recognized. If any of these are disregar,dad in the proceedings by which a person is condemned to the loss of life, liberty, 01' property, then the deprivation bas not been by ·due process of law.'" ,The opinion then, in express recognition of the true import of due process of law, concludes by saying that that proceeding is due process of those principles of liberty and justice" law " which regards and which have come to us from immemorial usage as safeguards of personal liberty. If the contention of the state here be correct, that Mr. Justice MATTHEWS intended to assel't the proposition that ,a second prosecution for the SlJ,me offimee after acquittal, or that the right of presentment' by grand jury, are not included the term "due process of law," simply for the reason that in the fifth amendment these rig4ts were expressly that nothing else named said amendment, therefore, protected, could beifegarded as coming within the protecting arms of the guaranty of due process of law, it would have been have merely so Ilsserted, would have ended the case. On the contrary, the elaboration of.the proposition that the presentment by indictment could not be regarded 8S t4e law of the land within the meaning of Mq,gna Oharta, and, usage in the common-law courts, and for that reason did n<;>t come within the meaning of "due process oflaw," extending over 17 or 18 pages of the reported case, leaves no room for doubt that, in the mind of the supreme court, had the right in question been part of the law of the land as hereinbefore defined, the appeal of Hurtado would have been well taken under the fourteenth amendment. This conclusion is made irresistible by the dissenting opinion of Mr. Justice HARLAN, 4 Sup. Ct. Rep. 292, whose great effort was to demonstrate the proposition that the necessity of ,8 presentment by grand jury in such an offense, before the accused could be put to trial, was a firmly rooted principle of the common law, and was the law of the land as understood and. recognized by the colonists and the framers of the federal constitution. And, to reduce the principles maintained by the majority opinion to" aryumentum ad absurdem, Mr, Justice HARLAN contends that the position taken by them oughtto lead to the monstrous conclusion that the term "due process of law," as em ployed in the fourteenth amend ment, would not cover the instance of putting a citizen twice in jeopardy for the same offense, which evidently the court would not desire to have imputed to it. It is furthermore quite apparent that, in the opinion of Mr. Justice MILl.ER in Ex parte Lange, supra, 172, such a violation of the rights of the citizen in question here would have been cognizable by the federal court. In alluding to the case of Moore v. People, 14 How. 13, he says: "But it was also urged that the party might be subjected twice to punishment for the same offense, if liable to be prosecuted under statutes of both state and national legislatures. 'In regard to this, Judge McLEAN said '" '" '" that ·the exercise of such 11 power by the states would, in effect, be a violation of the constitution of the United States, and of the respective v.42F.no.11-38
(,
094 provide a foritbe same act.' · ',saId he. · to the nature and, gemus of our governlXlent. to, permIt to be twice punished forth.e s'ame act.'" '
presehtsah instance of the most flagrant and reckless disregard of the rights of a citizen. He was' arraigned, pleaded n<;>t guilty, and put himself upon a jurY' of the country. 'l'he state, probefore the 'jury much;' ifl10t the greater pint, of its evi-, dence. ,By the now well-recognized law of the land, the" prisoner was then placed in jeopardy of his liberty, and was liable, without the power 'of retIttetion on hia part, to conviction' and infamous "punishment.
" The 'case oBhe
§1045; 'Pi,tano v. State, 54 Amer.Rep. 5Ui Roberts v. State, 58 Amer. 'and State v. 'Redtllan, 17: Iowa. ,33,2 i; State v. McKee, 21 Amer.Dec. 499, and note. Instead of proceeding with the trial, the (lOurt,'witl1outdiscloaing therealplirpose of theadjol1rbment, adjourned the trial following mMning, and without the knowledge 'or :cbriaent bNhepris6ner, in Jiis absence in jail,'and in the absence of hilfcO'Unsel,' the court perlilittedthe triat6f another cause to be taken up,whichoccupied four days of'court, aUowingthe jury to sepa,rate at 'will, ,vithoutany charge from thecourtj arid'theeause continued from daytbiday the presence oithe at any of these adjoarnments;' Then; oD'the sixth day', the colirt; against the objection the jury which had partly heard the case, asof the signing'as the'teasori'tqereforthat he felt too unwell to proceed with the ttiaLHethen ora6lted the ca.aeeontinued for a month,and agilin, against the plea of acquit, c6fupelledthe prisoner to submit to another trial before another jury, by 'which he was convicted. No authonty oHaw SUCh'll proceeding, and it is to be hoped it'has nOprecedentutiaer constitutional discharge of the jUry after'trial begun, without lega.rnecessity therefor, is in law tantamounttoan'acquittdL', Pi/l,(//t/;ov. Stare, 54 Amer. Rep. 511; Hiklnds v. 56 i Amel'.REip.:236; State'V. Calertdine, 8 Iowa, 292. In Wright 'v. State, 5 Ind. '292, the doUrt say: Dee. 53{)'; "Whenevet a given. in a legal indictment toa regular jurjl, and 'that Jury unnecessanly dIscharged. he has been onc'a put,in jeopardy, andth'adischarge is equivalent to a verdict of acqUittal. If a court has the right. during the trial. capriciously to discharge the jury, and continue, the cause until the next term. 'Ie ... 'Ie he might at every term impanel,. and thus rob the prisoner of his liberty by preventinga, final.inyestigution. 'Ie, 'Ie 'Ie We cannot regard the rule as wise or safe wnich pll\ces ,arbitrary or unguarded discretion in the hands of anyone when it be reasonably avoided."
In M,iteMJ,v.Stlxte, 42 Ohio St. ,883, the court say: the jury be thereafterdiscbarged without a vtlrdict, where no legal ground of di8chl\rgeis,shOwn; the effect will be precisely the same as if aver, dict of acquittal had been' rendered. 11 '
:Iii 'Whitten v. State,
717, the court say'
EX PARTE t:LRICH.
595
"The power to dismiss a jury in prosecutions for a felony can never depend on pleasure. !:luch power is wlJollydependent on necessity, either physical or legal. Where there is no necessity, there is no power."
Mr. Chief Justice
GIBSON,
in Com. v. Cltlc,3 Rawle, 498, said:
.. Why it should be thought that the citizen has no other assurance than the arbitrary discretion of the magistrate, * * * I am at a loss to imagi ne. If discretion is to be called in, there can be no remedy for the most palpable abuse of it but an interposition of the power to pardon. which is obnoxious to the very same objection."
Likewise, Mr. Chief Justice St. 12, said:
BLACK,
in McFadden v. Com., 23 Pa. . .
.. A discharge of the jury in a capital case after the trial has begun is, not a con tin nance of the cause. It is the end of it. .And, for all purposes of future protection, it is the same to the prisoner as an acqnittal, unless it was done with his own consent, or demanded by some overwhelming necessity."
The fact t-hat another case .had been set for hearing on a day which intervened during the trWl of this petitioner created no legal necessity for an interruption of trial, already begun. The case on trial had the right of way, and nothing. short of some providential interference, like the continued sickness of the judge, the sickness of ajuror, or some like legal impediment rendering it physically impossible or il. legal to proceed, could have jnstified such an interruption of the tr;i/ll, and discharge of the jury. The asserted indisposition of the judge after of the Wheeler Case cannot be regarded as the legal necesthe sity impelling the discharge of the jury. The evidence before me, as well as the history of the case itself when it was tried, leave no doubt but that the trial of the petitioner's case, had it proceeded, would have ended long prior to the intervening sickness of the judge, in addition to shows that the court, when it did discharge the jury, which th,e adjournedcaurt over to the 5th day of May, when it WllS agaiuin session. So there was no necessity far the discharge of the jury even upon the score of the temporary indisposition of the judge, as all mentswere,during the same term of court. If, merely for the accomthe case on trial modation and convenience of other persons and may be at the will of the trial judge, any number of cases may be sandwiched between the commencement and conclusipn oCthe thus the defendant be kept indefinitely on the rack, tortured trial, anxiety and dread sense of uncertainty as to his fate. with the Such a course of procedure would be as violative of the genius of our institutions of government as of the better instincts of humanity. The provision of the bill of rights which guaranties totheacctlsed a speedy trial 'is just as eflectual after the trial begins as it is before; and this violation Of the prisoner's rights was intensified after so long a delay, during which he was confined in prison, by the unnecessary discharge of the jury. ' 'rhe Jaw will give him the benefit of the presur;nption that the first jury. might hav.e acquitted him, and it is responsive. to this E!fi!'l.ent spirit that such fil'flt trial amounts to an acquittal. ,'It is, canten!led, however, on this of the by the, pro8,ecut-
596
iJ;ig attorney, that, in the state constitution, (section 23 of the bill of rights,) nothing short of 11 verdict of Ilcquittlll by the firstjury can prevent a second trial of the prisoner; and the case of State v. Jeffors, 64 Mo. 376, is cited in support. In that case the record showed simply the trial of the defendant, the final submission to the jury, and then the discharge of the jury by the court. The fact was that the jury disagreed, and there<mdfailed to show this fact, which omission of the record was sought to be remedied at a subsequent term by an entry nunc pro tunc. The plea of the former acquittal was interposed in bar of the second trial. The supreme court held that the entry nunc pro tunc was inadmissible, for the reason that there Was no minute or memorandum of record in the trial c()Ul't by which such subsequent .entry could be made; and it was f'i.1rtherheld thl},t,under the sta.te constitution of that case did notamoun.tto acquittal. The said section of the bill of. rights provides that. person, .. ...... after being once acquitted by a jhry, be again, for the same offense, putin jeopardy of life or liberty; but, if the jury to which the question of his guilt or innocence is submitted fail to render a verdict; the coutt before which the trial is had way,'ln its discretion, discharge the jury, and commit or bail the pl"isoner for trial at ,the next term of court, or, If the state of business will permit, at the same term." It was iii discussing this state of the record. and as applied to the facts of the case\ that Judge NORTON observed that this provision of thti constitution in part to change the old common-law practice of confining the jury, to be fed on bread and water, until the end of the term, in order to compel a verdict, on paIn of being transported in a cart around the circuit until a verdict was reached. "Strict as this rule was/' says the opinion, "it was nevertheless within the power of the courtto discharge a jury * * * for causes which could not befbreseen, * * * such as the sudden' death bfa juror during the progress of the trial. The provision above quotdddedares in plain terms that nothing short of an by It jury shall prevent a second trial. This being its obvious Iiieaning, we do not see how the trial court conld have done otherwise thnnoverrule the motion for the discharge of the defendant, as his right toS: discharge * * ·!I;·'depended upon his acquittal by a jury, which the red<'lfd. in the case does not show." This language, of courSe, must be undet'Stbod in reference to the facts of that case, and the peCUliar grounds of the motion, for the judge further observes: "It cannot, certalnly, IU:I}(}lmtto an acquittal by the jury; for an. acquittal by them can only ,be evidenced by the,r verdid. and the re('ord before us shows no such verdict, but Qniy that they retired to consider of their verdict. After the jury retires ,fqr.this purpose, there are three ways in which they might, lawfuHybedisc.harge4:.;F'i'l'st, by returning into court a verdi,qt for. vieti<)fi or by being discharged, by an order of COUl't, because of their inability' tp'agree upon a verdict, or by consent of defendant, or some unavoidable' cause, 'Buch as the sudden death of a ju:rbr; and,' third,by court in which the ,trial is pending.'" . .. ' to no of Jllry-eitherOh the first ti'i"seMnd'countil; but· the' concluswnteache'dJ by
597
th\) court, from the facts in the case, and the statutory period of the terms of court, was that the term of court expired while the jury were out, and that authorized the court to make the discharge. The opinion then concludes with this significant observation: "We express no opinion as to the effect of an arbitrary, unwarranted discharge of a jury in a case of felony. The power to discharge for certain causes undoubtedly exists; but it should he exercised with great caution, as the citizen whose life or liberty is given to the hands of a jury is entitled to fair consideration by them, of which he should not be deprived by the arbitrary action of the court." Still more conclusive of the fact that the supreme court of the state does not place the construction upon the provision of the bill of rights that the person is not in jeopardy until once· acquitted by a jury, in the sense contended for by the state's attorney, the later case of State v. Snyder, 98 Mo. 556, llS.W. Rep. 1036, need only be cited. There the rule of having been once in jeopardy was applied to the instance of a second triaL after one conviction. In that case the cuurt say: "ItwlIs a maxim lind practice of· the common law that no man was to be brought into jeopardy more than once for the ·same offense. '" '" '" Where the jury was charged witb the deliverance of the defendant,-that is, when· they are impaneled and sworn,:-the indictment being sufficient, and the court being possessed of jurisdiction, his jeopardy began." But fortha suggestion made by the state's attorney in the argument of this petition, it would scarcely be deemed necessary to say that the· prohibition in the fourteenth amendment restricting the power of the state in the matter under consideration applies equally to the act of a state judge. It has "reference to the actions of the political body denominated au' state,' by whatever instruments, or in ·whatev'er model'l, . that action may be taken. The state acts by its legislature, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exercised, shaH deny to any person within its jurisdiction the equtll protection of the laws. Whoever, by virtue of public position under a state government, deprives tlnother of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and, as he acts in the nametmd for the state, and is clothed with the state's power, his act is that of the state. This must be so, or the constitutional prohibition has no meaning when the state has clothed one of its agents with power to annul or evade it." In re Ah Lee, 5 Fed. Rep. 902. . I recognize, in aU its compass, the wisdom and policy of observing with scrupulous regard the proper line of demarkation between federal and state authorities. It is safest and best that each should move within the orbit of its own rightful and limited jurisdiction. This is essential to avoid needless friction and conflict. By observing the spirit of comity between the respective courts, harmony of action is promoted, and the essential autonomy of each is conserved. So, when this petition
FEDERAL I\EPORTER,
wasfirstr on the discharge of the first jury, I deferred action, suggesting to petitioner's counsel that nothing short ofa sense of the supreme necessities of theprisoner'i\ condition could induce my interference. I preferred that the petitioner should wait. see whether or not the l!tate cQurt woulq to put him to trial before another jury. When the court did· so, I again postponed tbe writ until after the hearing ofthemotion for new trial, which is recognized by the supreme court ofthe state as the due and golden opportunity of the trial court, on calmerdelibel'ation, toreetify its errorscomniitted in the progress of the trial. True it is the remedy yet remains to the prisoner to prosecute an appeal Of writ of error to the state supteme court. The supreme court would not, however, grant the prisoner the speedier rellef by writ of hab.eas C<J11lU8, as in such cases it only· takes, cognizance by writ oferror or appeal ·. , At this juncture of the case, I recall the utteranceof Homer, that "on the first day of his servitude the captive is deprived of one-half of his manly VirtUfl." Each hour of the petitioner's illegal restraint is not only a degredation in its tendency, but it is a ctiDl.e againstliberty..Tbe supreme,PQurt will in a few days adjourn until .october next. Under the most favorable conditions, no relief in that direction can possibly come'to the petitioner for foUf months. He n1tlybeuI1able to obtiJ.iIlbail. Must· 'be lie in jail, and go to the penitentiary, in violation of his constituttbMlright to be set free? Being inv6sttldwith plenaryjurisdiction for his protection, to fail to exert the power, from an overscrupulous regard of the course of procedure in the stAte oourtswould bea& timorous as it would be indefensible. Under a soleQlneense of official duty, I must, therefore, order the prisoner's disfurther custody. If, in this action, I errtoithe injury of the state, it has its redress byappeaho the higher federal courts.
UNITED STAT:ES V. MEANS.
599
UNITEDBTATES
v.
MEANS
et al.
(CirclIit Court, S. D.OMo, W. D. December 24, 1889.)
1.
NATIONAL BANKS-FALSE ENTRIES TO DECEIVE OFllICERS-DIRECTORS.
Directprl\ of !l national.bank are "ofllC(lrs," within the meaning of Rev. St. U .. S. § 52OQ; which makes it a misdemeanor for bank oftlcers to make false entries in any book, report, or statement of the bank, with intent to deceive any of its officers. '.' . '
Under said statute, intention to deceive anyone director or oftlcer is as criminal as the intention to deceive all of them. . . . , ' B.BAlIE-OFFlCERS A8 AccoMPUCBl!; , A conviction cannot be had under said statute where it appears that the oftlcera alleged to have been. deceived were accomplicell in the speoulation, to hide which the false entries were made.' , 4. 8.AlE-I'RESUJ\IPTION Oll' INTENT-REBUTTAL. ·
If suoh false entries had a natural tendellOY to deceive the bankoftlcers, the facit that defendants deny baving bad alQ" such actual intent cannot rebut the presumptionoo; intent arisinjt from the nature the entries themselves, ,
. .',
5. BUE. .' , " . . , In such Case the fact that· the 'oftlcets in qnestion were not· actually deceived IS , 'Dot ,COnclusive proof of the absence of intent to deceive. 6. CmM;llIfAL. L.lW-EVIDENCE Oll' GoOD . · Proof of good character is. no defense -against crime actually committed, but is a ciroumstance in favor of the defendant, 'in eases where there is doubt as to commission of the crime. 7. SAHE-l1.E,lSONABLE DOUBT.' . ' Reasdtlable doubt is an hoIi8st.misgiviilg, generated by the insuftloienoy of the proof. . · ,
At Law. Charge to thejury. Indictment of William ¥eans and John R. De Camp for a violation of Rev. St. U. S. §5209, whklh provides that" every presideQ.t, director, cashier, teller,clerk, or agent of any association * * * who makes any false entry in any bodk,report, or statement of the association, with intent, in either case, to injure or defravd the association, * * * o,r to deceive any officer of the association, or' any agent appointed to examine the affairs of any such association, * * * shall be deemed guilty,ofa misdemeanor, and shall be imprisoned not less than five years, nor more than ten." John W. Herron and He:nry Hoop(fl', for plaintiff. Char'le8 W. Bak(fl' and Samuel F. Hunt, for defendant Means. Jack80n ·A. Jordan and Isaac. oM. Jordan, .for defendant De Camp. HAMMOND, J., (charging jury.) Obviously, this trial has been one of grave concern to the people of Cincinnati. The defendants have each established, by the best proof, a reputation for honesty and integrity at the time of the transactions involved which is beyond all· question. Naturally, this would be so; for, without such a reputation, one would not be&llowedto occupy the place of president or vice-president of a national bank,· Whether honest or dishonest in fact, one admitted to such places must have at least an assured reputation for integrity;' and hence Wis that·tha,class of.offenses denouneed by the banking act of congress always