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March 6, 1953


The opinion of the court was delivered by: HOLTZOFF

The question presented is whether the Court in the course of a trial of a criminal case, may of its own motion order a mistrial because of misconduct of defense counsel, and whether, if it does so, a plea of former jeopardy bars another trial.

The defendant was on trial before one of the other judges of this Court and a jury on a charge of obtaining money by false pretenses. During the progress of the trial, the Court stopped the proceedings and ordered a mistrial of its own motion because of improper conduct of counsel for the defendant, in that counsel carried the examination of one of the witnesses beyond the limit which the Court had set. It should be observed that the Government did not move for a mistrial and that counsel for the defendant argued that his conduct had been proper. The defendant now moves to dismiss the indictment on the ground of former jeopardy.

 The Fifth Amendment to the Constitution of the United States provides: " * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb". This provision of the Constitution is a valuable guarantee of personal rights, and constitutes the basis for a plea of former jeopardy. The Constitutional safeguard applies in four principal situations: in case a person has been tried and convicted of a crime and it is sought to prosecute him again for the same or an included offense; in case a person has been convicted and sentenced and an attempt is made to increase the sentence; *fn1" in case a person has been acquitted after a trial on the merits and an endeavor is made to prosecute him again for the same or an included offense; and in case a person has been put in jeopardy by being placed on trial, but after the trial has actually commenced, a mistrial was ordered by the court and an endeavor is made to try the defendant again.

 The instant case involves the last situation. The question is under what circumstances may the Court terminate a trial without such action operating as an acquittal and as a bar to a subsequent trial for the same offense.

 Ordinarily a defendant in a criminal case has the privilege, granted to him by the above-mentioned clause of the Constitution, of securing a verdict from the jury originally impaneled and sworn to try him. This guaranty is no mere technicality, but constitutes a substantial right. It not only safeguards the defendant against being put to the agony, expense, and trouble of a second trial, but it also entitles him to secure a verdict from the particular jury that has started to hear the case. This privilege may prove at times very valuable, because the defendant may feel that the jury which is trying the case may be more favorably disposed to him than some future jury might be.

 Coke formulated this doctrine in the following language, Coke's Institutes, Part III, C. 47, p. 110, 6th Ed., London, 1680:

"To speak it here once for all, if any person be indicted of treason, or of felony, or larceny, and plead not guilty, and thereupon a jury is returned, and sworn, their verdict must be heard, and they cannot be discharged, * * *."

 On the other hand, Blackstone adopts this doctrine, but adds an exception to it, i.e., "unless in cases of evident necessity". He says, 4 Bla.Com. 360,

"When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident necessity) * * * till they have given in their verdict."

 At first, there was even considerable doubt as to whether in case a jury disagreed and was unable to reach a verdict, it could be discharged and the defendant tried a second time. The rule that a plea of former jeopardy did not lie in such a situation and that the defendant could be tried again if the jury was unable to reach a verdict, was, however, established at an early date. United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165. Justice Story made the following statement in that case:

" * * * the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; * * *. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware, that there is some diversity of opinion and practice on this subject, in the American courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial." (Emphasis supplied.)

 The foregoing expression, however, must be read in the light of the issue presented in that case, namely, whether the Court has power to discharge a jury that has been unable to agree, and place the defendant on trial before another jury.

 In United States v. Coolidge, 25 Fed.Cas. page 622, No. 14,858, Justice Story, sitting in the Circuit Court for the District of Massachusetts, held that the discretion to withdraw a juror exists in all cases, but is "to be exercised only in very extraordinary and striking circumstances." He suggests situations in which the defendant is taken sick during the trial, or a juror is taken ill, or a witness refuses to be sworn and testify. The last of these predicaments confronted the court in the Coolidge case. It ...

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