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Amendments V and VI



Document 53

United States v. Gibert

25 Fed. Cas. 1287, no. 15,204 C.C.D.Mass. 1834

Story, Circuit Justice. This is an indictment for a robbery on the high sea, which is declared to be a capital offence and piracy by the statute of 1790, c. 9 [1 Stat. 113]. The prisoners having been found guilty, a motion has now been made for a new trial, upon grounds stated in a written motion submitted to the court. Upon the grounds thus stated, it is unnecessary for me to say any more at present, than that so far as they purport to be founded upon what took place at the trial in the presence of the court and jury, they are not admitted by the court, to present a full, accurate, or just representation of all the facts and circumstances. This remark is made simply to prevent any misapprehension from any silence or acquiescence of the court upon this subject.

The question now to be considered is, whether this court has, by the constitution and laws of the United States, authority to grant a new trial in a case circumstanced as the present is. And, in order to free the case as much as possible from any collateral and unimportant considerations, it is proper to state, that in examining this question, we shall, for the present, assume that the court had jurisdiction of the case; that there has been no mis-trial, in a legal sense, that is, no such irregularity, or error in impannelling the jury to try the cause, or in the other proceedings, in the course of the trial, as would upon the face of the process and proceedings be fatal as matter of substance, and that the indictment is sufficient in point of law to found a just judgment against the prisoners in conformity to the verdict. In other words, for the purpose of the argument, we shall for the present assume that the jurisdiction is clear, that the indictment is good, and that the trial has been regularly had, and the verdict has been regularly rendered by a competent jury.

Under such circumstances, has this court authority, by the constitution and laws of the United States, to grant a new trial after a verdict regularly rendered of guilty against the prisoners?

. . . . .

Upon the whole, having given this subject the fullest consideration, I am, upon the most mature deliberation, of opinion that this court does not possess the power to grant a new trial, in a case of a good indictment, after a trial by a competent and regular jury, whether there be a verdict of acquittal or conviction. My judgment is, that the words in the constitution. "Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb," mean that no person shall be tried a second time for the same offence, where a verdict has been already given by a jury. The party tried is in a legal sense, as well as in common sense, in jeopardy of his life, when a lawful jury have once had charge of his offence as a capital offence upon a good indictment, and have delivered themselves of the charge by a verdict. In this respect I follow the doctrine of the supreme court of New York; and the doctrine of the supreme court of Pennsylvania and North Carolina goes not only to the same extent, but includes cases where the party is once put upon his trial before the jury, and they are discharged from giving a verdict without extreme necessity. This too is the clear, determinate and well settled doctrine of the common law, acting upon the same principle, as a fundamental rule of criminal jurisprudence. I deem it a privilege of inestimable value to the citizen; and that it was introduced into the constitution upon the soundest principles of prudence and justice. But if it were otherwise, it is my duty to administer the constitution as it stands and not to incorporate new provisions into it. If this clause does not prohibit a new trial, where there has already been a regular trial and verdict, then it is wholly immaterial whether the verdict is of acquittal or of conviction of the offence; and the same party may, in the discretion of the court, be put upon his trial ten, nay, twenty times, if the court should deem it fit. It was (as I think) among other things, to get rid of the terrible precedents on this subject alluded to by Lord Hale, and even acted upon by him, in the reign of Charles II., in discharging juries from giving verdicts upon frivolous or oppressive suggestions, that this great maxim of the common law was engrafted into the constitution. The constitution has also in another clause declared, that "no fact once tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." The only modes of making this re-examination known to the common law, are by a writ of error and a new trial, and if by the common law there cannot be a new trial in a capital case, after a regular trial once had upon a good indictment, as seems to me to be conclusively established by the English authorities already cited, then this clause also carries in its bosom another virtual prohibition.

Lest I should be thought to have overlooked the case of U. S. v. Daniel, 6 Wheat. [19 U. S.] 542, where the circuit court divided upon the motion for a new trial, I beg only to say that the point whether the circuit court had jurisdiction to grant a new trial in a capital case, was not before the court. It was a mere certificate of division of opinion of the circuit court; and the supreme court held that it had no jurisdiction to entertain the point certified, so far as it regarded a new trial.

If the language used by me in the Commentaries on the Constitution (3 Story, Const. c. 38, § 1781) should be thought to inculcate a different doctrine, I can only say that I do not so understand it. I have no doubt that there are cases where there may be a new trial; as in cases of a mis-trial by an improper jury. See People v. M'Kay, 18 Johns. 212; 2 Hawk. bk. 2, c. 36, § 15; Rex v. Keite, 1 Ld. Raym. 139; 2 Hawk. P. C. c. 27, § 104; Id. c. 47, § 12; Arundel's Case, 6 Coke, 14. But in the language there used, it should be considered that the author was not summing up his own private or judicial opinions, but only gathering together the opinions of others, which had come to his knowledge, to illustrate the text. But if there be any erroneous opinions inculcated in those Commentaries, which upon more deliberate examination I should deem unfounded, I trust that I shall be the last person to insist upon them as obligatory or correct. My duty, as a judge, is to pronounce such a judgment as my conscience dictates, without reference to any preconceived opinions. But I freely admit that I see nothing in that passage of the Commentaries, so far as relates to the granting of new trials, which I deem incorrect, or which I wish to retract.

It may be thought by some, that there may be great inconvenience in the establishment of this doctrine. But if there be, it is for those who possess the power to amend the constitution to apply the proper remedy. For myself, I entertain great doubts whether, in the actual administration of public justice, the present doctrine would not be far more safe and useful than an unlimited power to grant new trials in all capital cases, at the mere discretion of the court. It may be, that a court may sometimes err in the proper administration of the law; and it may also err in granting or refusing a new trial. But the consciousness that the trial is final, will always impress every court, mindful of its duty, with the utmost caution in all its opinions and judgments in capital cases, where the result may be unfavorable to the prisoner. It will naturally induce it to lean to the side of mercy; and it will look anxiously to the dictates of the law. But still if, after all, errors should intervene, it will be but the common infirmity of the administration of all human justice. And the prisoner, even in such a case, will not be wholly without redress. He may apply for a pardon or mitigation of the sentence, to the executive; and it cannot be doubted that the court itself, if conscious of any serious error, would cheerfully aid in his application. Hitherto this ultimate appeal to the pardoning power has been deemed satisfactory and safe in the land of our ancestors down to our own age; and it has been deemed equally satisfactory and safe in all those states whose jurisprudence does not permit a new trial in capital cases under like circumstances. But whatever might be my opinion as to the authority of this court to grant a new trial in capital cases generally, I shall, under the present circumstances go over all the grounds insisted upon by the prisoner's counsel (some of which being in arrest of judgment, are indispensable to be disposed of before judgment), because if any error in point of law has been committed by the court, injurious to the prisoners, or upon established principles of law, they ought (if the court could grant it) to have a new trial, I should feel it my duty to make a direct application in their behalf to the executive for a pardon, to redress the error. God forbid that any man in this country should suffer death against the law, from the mere infirmity of judgment of those who are appointed to preside at his trial.

. . . . .

Another cause assigned for a new trial is that the jury were furnished with newspapers in their room, and did read them during the pendency of the trial; and subsequently another ground was added in a supplementary paper, that the jury drank ardent spirits while they had the cause in charge. It is important to a right understanding of these objections, to state the real facts and circumstances attendant upon the trial. The trial lasted, I believe, about fifteen days, during which time the jury were kept together night and day in the custody of officers. Some of them were engaged in very pressing business, which required them to communicate with friends respecting that business; and one or more of them was in ill health during the trial, and was obliged to have the aid of a physician. These circumstances were stated in open court, and it was agreed between the counsel in open court, that the jury might have all reasonable refreshments during the trial, that they might communicate on business with their friends, and write and receive papers from their friends on business, the papers being previously examined, and the conversation witnessed and heard by one or more of the officers of the court. And the court requested the jury during the trial, and until the arguments were heard and the charge given, not to converse with each other on the subject of the trial, in order to keep their minds open to the last moment to all the merits of the cause. While the jury were thus kept together, they were allowed by the officers of the court attending them, to read the public newspapers, the officers first inspecting them and cutting out every thing that in any manner related to the trial. And it now appears, as well from the affidavits of the officers, as from the affidavits of the jurymen, that in point of fact they never saw any thing in any newspaper relative to the trial. The officers granted the indulgence to read the newspapers, under a mere mistake of their duty, and as soon as the charge was given by the court, the jury were not allowed to see any newspaper, until after they had delivered their verdict in open court. So far, then, as reading the newspapers went, there is not the slightest reason to believe that it could or did in fact in any manner whatsoever affect the verdict or influence the jury. The evidence, as far as it bears on the point, negatives any supposition of this sort. And, speaking for myself, I must say that considering the protracted nature of the trial, and the necessary privations of the jury, and the importance of keeping them when out of court from too constant meditation upon the subject of the trial while it was yet imperfectly before them, I do not doubt that the indulgence had a tendency to tranquillize their minds, and to keep them in a state of calmness and freedom from anxiety highly favorable and useful to the prisoners themselves. Without doubt it was a great irregularity in the officers of the court, for which they may be punishable, to have granted this indulgence without the express sanction of the counsel or of the court. I am not aware that any such sanction was given. But it is not every irregularity of officers, which would justify a court in setting aside a verdict and granting a new trial, or treating the matter as a mis-trial. The court must clearly see that it is an irregularity, which goes to the merits of the trial, or justly leads to the suspicion of improper influence, or effect, on the conduct or acts of the jurors. We must take things as they are in our days. Juries cannot now, as in former ages, be kept in capital cases upon bread and water, and shut up in a sort of gloomy imprisonment, with nothing to occupy their thoughts. It would probably be most disastrous to the administration of justice, and especially to prisoners, to attempt, in these days, the enforcement of such rigid severities, so repugnant to all the usual habits of life. And for one, I am not satisfied that the irregularity in the present case has been in the slightest manner prejudicial to the prisoners; but on the contrary, as far as the evidence leads me to any conclusion, I should deem it favorable to the prisoners. The indulgence ceased the moment when the charge was given, and the jury were then put upon their own solemn and exclusive deliberations on the case.

The other ground is, that the jury, while they had the cause in charge, drank ardent spirits. Now it is most material to state certain facts which took place at the trial, and which though wholly passed over in this motion, yet essentially affect its validity and force. After the charge was given by the court to the jury, one of the jurors in open court stated that he had been unwell for several days, and still was so, and that it was impossible for him under the circumstances to confine himself to water, without danger to his health; and he wished permission to use such spirit as might be required for his health. The counsel for the prisoners then assented in open court to this indulgence, and it was also assented to by the district attorney, who at the same time suggested that the like indulgence ought to be extended to any others of the jurors, whose state of health, from the great length of the trial, and their unusual confinement, might also require it. The counsel for the prisoners then gave their consent to this extension of the indulgence. It was accordingly stated to the jury in open court that it was so granted; but they were at the same time advised to use the indulgence as little as possible, and in as moderate a manner as practicable. Now upon this statement, where there was an express consent given by the prisoners' counsel in open court to this indulgence to the jurors, it seems to me impossible that the present objection can be sustained, unless it is shown, that the indulgence was grossly abused, and operated injuriously to the prisoners. Of this there is not the slightest proof, nor indeed was it even pretended at the argument. On the contrary, the only evidence in the case to establish the fact of drinking ardent spirits, comes from one of the jurors, who is said to have stated, after the trial was over, that he was sick and went down to the bar, and got a glass of brandy and water. The juror himself has not been examined. And this renders it wholly unnecessary to consider the authority and bearing of the cases cited at the bar on this subject: and especially the cases of People v. Douglass, 4 Cow. 26, Brant v. Fowler, 7 Cow. 562, and People v. Ransom, 7 Wend. 417, for they all turn upon very different circumstances.

. . . . .

Davis, District Judge. I concur with the presiding judge in the disposal of the motions before us, in this very serious case, which has so long engaged the devoted and solicitous attention of the court, counsel, and jury. With the grounds and reasons of that opinion my own views coincide, excepting in one point, and on that, from its important bearing, as a constitutional question, I consider it a duty to express my opinion. I refer to that part of the argument, which rests the denial of a power, in the courts of the United States, to grant a new trial, on the merits, in a capital case, though at the request of a person convicted, on the 5th article of amendments to the constitution, declaring, that "no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb." The case of a person convicted of a capital offence, put on trial again, would certainly be embraced by the terms of the article; and yet, in my view of the question, it would not present a case within its true intent and meaning. The article, in the amendments to the constitution, corresponding to a rule of the common law, according to the prevailing spirit and character of those amendments generally, was doubtless intended for the security and benefit of the individual. As such it may be waived and relinquished. That the request of a prisoner for a new trial, affording a chance of escape from death to which a previous conviction would assign him, should be rejected, from adherence to the letter of the rule, that his life would be again in jeopardy, would present an incongruity not readily to be admitted. It is true, that according to approved authorities, the plea of autre fois convict depends on the same principle as the plea of autre fois acquit, that no man ought to be twice brought in danger of his life, for one and the same cause. Bl. Comm. bk. 4, c. 26; 2 Hawk. P. C. 377. The doctrine establishes a right in the prisoner to resort to that defence, if it be attempted or moved, against his will, to subject him to a second trial. The case of a verdict of conviction set aside, at the request of the prisoner, is not suggested in those authorities, and would stand, in my opinion, on very different ground. The previous conviction would not, I apprehend, under such circumstances, be considered as a sufficient bar to a second trial. The concise manner in which many general maxims of the law are expressed, like general rules on other topics, admits or requires, in their application, distinctions, exceptions, and qualifications, all just, reasonable, and, in some instances, indispensable, not expressed in their terms. We have an instructive exemplification of this in an early case, in the supreme court of the United States, in which the meaning of the prohibition, in the constitution, of ex post facto laws, came in question. "I do not consider," said Mr. Justice Chase, "any law as ex post facto, that nullifies the rigor of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction." 3 Dall. 391. The benign spirit, ever pervading our law, which dictated that distinction, may, as appears to me, have a proper influence and application, in reference to the rule of law under consideration, and in other instances of analogous character. By the old common law, observes Sir W. Blackstone, the accessory could not be arraigned till the principal was attainted, "unless he choose it, for he might waive the benefit of the law." Comm. bk. 4, c. 25. And in People v. McKay, 18 Johns. 212, a case of murder, Chief Justice Spencer remarks: "We know of no case which contains the doctrine, that where a new trial is awarded, at the prayer and in favor of a person that has been found guilty, he shall not be subject to another trial." On the whole, I am not convinced that the article of the constitution under consideration, would, in just and reasonable construction, be a bar to a new trial granted at the request of a person capitally convicted. I am not aware that there is any direct decision on this point. It is an open question. If a second trial in capital cases, be inadmissible, under the article, though at the request of the prisoner, then no legislative enactment can vary the law on the subject, without an amendment of the constitution. The question may thus become highly important, though the article should be binding only in the courts of the United States; still more so if, conformably to Chief Justice Spencer's opinion, it extend to decisions in the state courts. A decision on this point, however, is not essential, as this case stands, to a determination on the motion for a new trial, in which, notwithstanding a difference in opinion in reference to the constitutional question, we come to the same result. The discretion of the court on the subject of new trials is not unlimited. They are allowable "for reasons for which new trials have usually been granted in the courts of law," and with this statute direction, we are to bear in mind the 7th article of amendments to the constitution--"No fact tried by a jury, shall be otherwise re-examined, in any court of the United States, than according to the rules of the common law." Having reference to such directories, should the motion for a new trial in this case be allowed, there would, in my opinion, be a departure from the usages of courts of law, and from the principles manifested by the great current of decisions in cases of this description.

I agree with the presiding judge, in the views which he has expressed on the motion in arrest of judgment, as well as with those on the motion for a new trial, excepting in the instance which I have specified, and in the result, that the motions be overruled.

. . . . .

Story, Circuit Justice. This being the case of a capital conviction, when the counsel for the prisoners, a week ago, suggested an intention to offer a bill of exceptions, the court then stated, that it would be expected that he should show some authority to justify the court in allowing a bill of exceptions in a capital case. It is now admitted, that the counsel have no authority to cite, which affirms the power in this court. And it is believed by the court, that none exists. We have, however, in the interval between the suggestion and the present time, deliberately examined the point, and are fully satisfied, that no such power exists in the court; and therefore it has not been deemed necessary to examine the correctness of the exceptions stated in the bill, which has been proffered.

In the first place, no power is given by statute to this court, to allow any bill of exceptions in any criminal case whatsoever; and it seems impossible to infer it by implication from any provisions in the laws of the United States. The circuit courts have final jurisdiction of all cases of crimes; and no writ of error or appeal lies to the supreme court in any such cases. Now, the sole object of a bill of exceptions is to present the matter for the revision of some superior court; and if no revision can be had, then the authority to allow a bill of exceptions would be utterly nugatory. The only mode contemplated by the laws of the United States to revise the opinions of the judges of the cirucit courts in criminal cases is, when the judges are divided in opinion at the trial; and then the point of division may be certified to the supreme court for a final decision under the judicial act of 1802 (chapter 31, § 6). There was no such division upon the present trial. If resort be had to the common law to aid us in examining this point, it will be found, that no bill of exceptions lies, in capital cases, even since the statute of Westminster II. (13 Edw. I. St. 1) c. 31, which first gave a bill of exceptions. And the better opinion certainly now is, that that statute is confined to civil proceedings, and does not extend to any criminal proceedings whatsoever. As the authorities are not all agreed on this point in cases of mere misdemeanors, it is not necessary here to decide it in regard to the latter. But in capital cases, in cases of treason and felony, it is universally agreed in England, that no bill of exceptions lies. This was solemnly settled in the case of Rex v. Vane, which was a case of high treason. It is reported in 1 Lev. 68, and in various other Reports. See Buller, N. P. 316; 1 Chit. Cr. Law (English Ed.) 622; Willes, 535, and note (b), which cites 2 Inst. 424, and Saville, 2. The very point was made, and according to Leving's Reports, it was held by the court, "that a bill of exceptions does not lie in criminal cases, but only in actions between party and party." The application was accordingly overruled, and Sir H. Vane was executed on Tower Hill. The same doctrine is laid down in Hawkins (2 Hawk. P. C. c. 46, § 198), who says: "It hath been adjudged, that no bill of exceptions is grantable on an indictment of treason or felony, the statute of Westminster, etc., having never been thought to extend to any such case." Lord Hardwicke, in Rex v. Inhabitants of Preston, Cas. t. Hardw. 251, 2 Strange, 1040, said: "Nor was it ever pretended, that in capital cases a bill of exceptions lay. In Vane's Case, it is not said to lie in any criminal case. But that point is not settled, and therefore I will give no opinion as to that." In Bacon's Abridgment (1 Bac. Abr. "Bill of Exceptions") it is said: "It is agreed that no bill of exceptions is to be allowed in treason or felony." And the same doctrine will be found in other elementary writers (see Buller, N. P. 316; 1 Chit. Cr. Law, English Ed., 622; Willes, 535, and note b, which cites 2 Inst. 424, and Saville, 2), and no authority to the contrary can be found. In People v. Holbrook, 13 Johns. 90, S. P. 6 Cow. 565, it was held by the supreme court of New York that no bill of exceptions lies in any criminal case; and this doctrine is not only supported by Vane's Case, but by Rex v. Barkstead, 1 Kreb. 244; T. Raym. 468; 1 Sid. 85.

There is then no pretence to say, that in capital cases this court can draw in aid the doctrines of the common law, as administered in England, to confer such a power. It is not implied from any statute authority. It is not implied in any reasoning at the common law, or under the statute of Westminster. We are therefore of opinion, that this court possesses no such authority; and we dare not assume what has never been confided to the court.

If this objection were not, as we think it is, conclusive, we think, that the bill of exceptions ought not now to be allowed, upon another and a distinct ground. It was not made or tendered at the trial, nor until a long time afterwards, and after a motion made and argued for a new trial and in arrest of judgment, and the opinion of the court deliberately had thereon. Under such circumstances, where the verdict was satisfactory, and the court feel no doubt about the law, it is our opinion, that the bill of exceptions ought not to be allowed. It is not within the general principles, which regulate rights of this sort. See 1 Salk. 288; 8 Mod. 222; 2 Tidd, Prac. 788. The government has its rights, as well as the prisoners.

Bill of exceptions not allowed.


The Founders' Constitution
Volume 5, Amendments V and VI, Document 53
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