Amendments V and VI

Document 42

Commonwealth v. Cook

Tilghman, C. J.--A bill of indictment having been found against the three prisoners during the present session of this Court, for the murder of Samuel Alwine, they put in a plea, supposed by them to be of the same import as a plea of autrefois acquit, to which the attorney for the Commonwealth demurred, and the prisoners joined in demurrer. The prisoners have likewise entered on the record a motion to be discharged from this indictment for the same reasons as are set forth in their plea. The plea is, in substance, as follows: That at a former Court of Oyer and Terminer, held before the Judges of the Court of Common Pleas for the county of Philadelphia, in the months of April and May last, they were indicted for the same murder, whereupon they pleaded not guilty, and issue having been joined, a jury was sworn, evidence given for the Commonwealth and for themselves, pleadings of counsel heard on both sides, and a charge delivered by the Court to the jury. At half an hour past nine in the evening of the 1st May, the jury retired to consider of their verdict. They returned to the Court several times, without having agreed, and being sent back by the Court, they came in for the last time about half past twelve in the afternoon of the 2d May, having been out in the whole about fifteen hours. Being then asked whether they had agreed on their verdict, they answered, that they had agreed as to two of the prisoners, and had not agreed as to the third, nor was there the least probability of their agreeing. Thereupon, the Court refused to permit the jury to pronounce the verdict which they had agreed upon, and without, and against the consent of the prisoners, the jury were discharged by the Court from saying any thing of their verdict in and upon the premises.

Before I enter on the question, I think proper to declare, that I have no doubt of the integrity of the learned Court by which this jury was discharged. And however my opinion may differ from theirs, it must be confessed, that as to the general discretionary power of discharging juries, they are not without countenance from Judges of high character in other States.

In considering this matter, I shall confine my opinion to the case before the Court, which is a case of murder, a crime of which one species, viz: of the first degree, is punishable by our laws with death.

Concerning the power of the Court to discharge a jury in a capital case, Judges have not always agreed. It is one of those questions which remained long unsettled, nor even yet has any general rule been established which embraces all cases. Indeed, from the nature of the thing, such a rule is not to be expected. The judges have, therefore, thought it safest to decide, from time to time, the cases which have been brought before them, taking care not to commit themselves on general principles. There is, indeed, one principle which cannot be contradicted, and that is, that the jury may be discharged in cases of absolute necessity; but what constitutes that necessity has been ascertained only in the particular cases that have arisen. There was an ancient tradition among the English lawyers, that a jury charged in a capital case, could not be discharged without giving a verdict, even with the consent of the attorney general and the prisoner. This is laid down for law by Sir Edward Coke, in his 1 Inst. 227b. and 3 Inst. 110. It is a doctrine altogether unreasonable; for why should not the jury be discharged, when it is desired by all parties interested in the verdict? Accordingly, we find that it could not stand, though supported by so great a name. Lord Coke cited a case in the Year Books, 21 Edw. III., which being thoroughly examined, was found not to support his opinion. The matter was fully discussed in the case of the Kinlocks, Foster, 22, and the law, in cases of consent, settled on a foundation too firm to be be shaken. The Kinlocks having been indicted for treason, pleaded not guilty, and were put upon their trial; and after the jury were sworn, they asked permission to withdraw their plea, in order to plead another matter of which they were advised they could not have the advantage on the general issue. Leave was given, with the consent of the attorney general, and a juror withdrawn, after which their second plea being overruled, they were tried by another jury and convicted of high treason. They then moved in arrest of judgment, because the first jury had been discharged; but it was decided by nine Judges against Wright, (the only dissentient,) that the discharge of the jury was legal, and judgment was pronounced against the prisoners. We may conclude, then, that in cases of consent, fairly given, where the prisoner is assisted by counsel, and the discharge of the jury is intended for his benefit, they may be discharged without giving a verdict. But that is not the present case, for the prisoners expressly dissented. If the proceedings of the Court can be supported, then it must be on the principle of necessity. And it is contended, that upon this ground it may be supported, because, when the jury are so exhausted as not to be able to continue their deliberations, they must either be discharged or perish. If that were the alternative, no doubt [Volume 5, Page 282] they ought to be discharged; but I cannot perceive any such necessity on this record, although the Court appears to have recorded very fairly all the circumstances of the case. Indeed, as to two of the prisoners, there was evidently no necessity, because, as to them, the jury were prepared, and offered to give their verdict. I presume the Court was of opinion that the verdict could not be taken unless it embraced all the prisoners, and, therefore, the necessity extended to all. If the law were so, it would certainly be a reflection on the administration of justice; for it is flagrantly unjust that one who had put himself for life or death on a jury of the country, and had satisfied that jury of his innocence, after a full hearing of the evidence, the pleadings of course on both sides, and the charge of the Court, should be deprived of the benefit of a verdict, because the jury could not agree on the guilt or innocence of another person who happened to be tried with him. If the prisoners had been tried by different juries, as they might have been, though charged in the same indictment, no question of this kind could have arisen. And yet, where is the difference, or why should their case be the worse because all were tried together? Their offences were distinct; and it is not denied that the jury might have convicted some and acquitted others. They had a right to sever in their challenges, which shows that the law protects their several rights. It is true, that a verdict may be called an entire thing, though it includes the case of several persons. Yet it is a whole, consisting of parts essentially distinct; so that, in substance, there are as many verdicts as there are defendants. When the jury are about to give their verdict, they are asked as to each of the prisoners, severally, Is A. guilty or not? Is B. guilty or not? Is C. guilty or not? Extraordinary indeed, then, must it be, if the case of the prisoners is to be considered as several, in all these minor points, and yet joint as to the verdict on which their lives depend. Nothing less than the most imperious authority should induce the Court to yield to such a doctrine. But I am happy to find that the authorities place us quite at ease. It is unnecessary to give an opinion on the law in civil cases. There are two cases in 21 Viner, 481, (Trial S. g. pl. 1 and 2,) one of which is reported in 12 Mod. 275, the other in 3 Salk. 362, from which it may be collected, that as the law was then held in actions against several for a joint trespass, if some were acquitted and others unjustly convicted, the Court would not grant a new trial, because it could not be done without putting those who were acquitted to a second trial. And yet, in joint trespass against several defendants, where no evidence is given against one, it has been the practice to take a verdict for him, and then suffer him to be a witness for the others. 1 Phill. Ev. 61. Bull. N. P. Gilb. Ev. 117, 6 Binn. 316. 3 Esp. N. P. Cases, 25. Now, in such a case, if the other defendants should be convicted, against evidence, I should suppose the Court would ponder well before it suffered justice to be defeated by a technical difficulty. The difficulty is, that the new venire facias must include all the defendants. The ingenuity of the Court, which it would be their duty to exert in such a cause, might, I should think, find means to evade or conquer this objection. In civil cases, however, I will only say, that I do not consider it as settled, that a new trial cannot be granted for some of the defendants only. As to criminal cases, it was decided, in Fern's Case, Hil. Term, 27 and 28, Car. 2, mentioned in Buller's Nisi Prius, 326, that in an information exhibited against three, and verdict against all, a new trial might be granted as to one only. Upon this case Buller makes the following remarks: "Yet the authority of this case may be well doubted; for where there were several defendants, and the verdict, as to some, was against evidence, yet the Court would not grant a new trial, for they said the verdict must stand or fall in toto." And for this, he cites Collier v. Morris, Mich. 1755, and Captain Crabb's Case, Mich. 23, Geo. II. The authority of Buller is of weight. His opinion was, however, bottomed altogether on the cases he cited. No good reason is given in support of it; and it has been since overruled as unreasonable, and tending to obstruct justice. These are English authorities: Let us now turn to our own country. In Pennsylvania, I know of no authority in point. In The People v. Olcott, 2 Johns. Cases, 301, as I understand the report of the case, two were indicted for conspiracy, and tried by the same jury. As to one, there was a verdict of acquittal, but as to the other, the jury, not being able to agree, were discharged by the Court. This was before the Supreme Court of New York. It is not quite certain, however, that both the defendants were tried by the same jury. The report is not so clear as could be wished on that point. But in the case of the Commonwealth v. Wood, in the Supreme Court of Massachusetts, 12 Mass. Rep. 313, there is no doubt. Two were indicted for larceny, the jury acquitted one, and were discharged as to the other, because they could not agree. That is precisely the case before us, and I embrace the principle of the Court of Massachusetts in receiving the verdict with all my heart, because it advances justice and prevents injustice. I conclude, then, that the verdict ought to have been received as to two of the prisoners. But what was that verdict, and to which of the prisoners did it relate? On both these points the record is silent. In such a case, I think myself bound to presume in favour of the prisoners, that it was a verdict of acquittal. But I can make no presumption as to the persons intended to be acquitted. What, then, is to be done? Parol evidence cannot be received. It must, therefore, remain unknown which of the three prisoners occasioned the doubt in the minds of the jury, and who were the two they had agreed to acquit. Under these circumstances, it would be impossible to order either of them to a second trial without the hazard of exposing one of those whom the jury had agreed to acquit. There is no certainty, therefore, of avoiding injustice but by saying that neither of them shall be brought to a second trial. This is my opinion, considering the case simply on the refusal of the Court to receive the verdict. But another and much more important view remains to be taken. In considering the refusal to receive the verdict, I have supposed that the record exhibited a case of necessity, which would have authorized the Court to discharge the jury from that part of their verdict in which they had not come to an agreement. But this is denied by the counsel for the prisoners; and it is a question which demands our most serious deliberation. In the state of purity and independence in which I verily believe the judiciary of the several States, as [Volume 5, Page 283] well as of the United States, at present stands, there might be no danger of oppression from its enjoyment of a very large discretionary power as to the discharge of juries. But other times may come, in which other Judges might abuse their discretion, and it is fortunate, perhaps, that the point has occurred now, when the subject may be considered without prejudice or passion. In this Commonwealth, we allow the authority of the English decisions down to the 4th July, 1776. I will, therefore, first consider the English law as it then stood. I am not aware of any established principle of English law, at that day, by which the Court could discharge a jury merely because they could not agree, even in a civil case; but in a criminal and capital case, I take it to be quite clear, that the Courts did not consider themselves as invested with any such authority. It was not until the case of the Kinlocks, (in 1746,) that this subject seems to have been well considered. Many bad precedents are to be found in the latter part of Charles II. and the whole of James II.'s reigns; but these were disregarded after the revolution in 1688. The rebellion of 1745, in which the Kinlocks took part, excited warm passions; but the opinion of Sir Michael Foster, delivered in that case, is so replete with candour, learning, and good sense, that we cannot but admire it. That was a case in which the jury was discharged at the request of the prisoners, assisted by able counsel, and with the intent of imparting to them a privilege which they could not otherwise have enjoyed. But there is not to be found in Foster's opinion, any vestige of an argument in favour of the power to discharge a jury, merely because they could not agree. Indeed, I think it is manifest that his opinion was to the contrary; for, in his remarks on Mansell's case, (reported in 1 And. 103,) he thus expresses himself: "The truth of the case was no more than this: the jury were not agreed on any verdict at all, and, therefore, nothing remained to be done by the Court but to send them back, and keep them together, until they should agree to such a verdict as the Court could have received and recorded." And, now that I have mentioned this case of Mansell, it is proper to remark, that there, the Court seemed to be aware that it had no power to discharge the jury without the prisoner's consent, (who was on his trial for murder,) for it took the precaution of obtaining his consent, and placing it on the record; for which proceeding Foster censures the Court--"For," says he, "the prisoner ought not to have been drawn into any consent at all, for, in capital cases, I think the Court is so far of counsel with the prisoner, that it should not suffer him to consent to any thing manifestly wrong, and to his own prejudice." Serjeant Hawkins lays it down, (book 2, ch. 47, sect. 1,) "that a jury sworn and charged in a capital case, cannot be discharged without the prisoner's consent, till they have given a verdict, and notwithstanding some authorities to the contrary in the reign of king Charles II., this hath been holden for clear law, both in the reign of king James II., and since the revolution." Although this rule is laid down generally, yet it is to be understood that cases of necessity are excepted. It is to be considered, then, what those cases are. There is a class of cases which depend on what may be called the necessity of doing justice; such as where the prisoner has tampered with some of the jury, or has contrived to keep back the witnesses for the prosecution. It was once thought necessary in England to discharge a jury, (2 Hob. 295,) where it was found that the evidence for the King was defective, and the attorney general suggested that sufficient evidence might be had another time. So where the indictment had been badly drawn by the negligence of the Crown officer. Such reasons, (I mean, want of evidence, or negligence in drawing the indictment,) would not be listened to in this country. This class of cases does not comprehend that before the Court, and I only mention it to show, that there may be a kind of necessity arising from the duty of the Court to guard the administration of justice against fraudulent practices. But the necessity which applies to the present question is absolute; and I will mention some of the cases from which its nature may be understood. It is said by Lord Hale, (1 Hale, 34, 35,) that if the prisoner, after his plea, and before trial, becomes insane, he shall not be tried; and if after his trial he becomes insane, he shall not receive judgment; and if after judgment, he becomes insane, his execution shall be spared; because, if he was of sound mind, he might allege something in stay of judgment or execution. He has omitted the case of insanity happening during the trial; but, upon the principle of the other cases, no doubt in such case the jury should be discharged from giving a verdict. In the case of Elizabeth Meadow, (Foster, 76, A. D. 1750,) the prisoner was taken in labour during the trial, and the jury were discharged. So the jury has been discharged where one of the jurymen fell down in a fit, and was unable to proceed in his duty. And Sir M. Hale mentions a case, (2 Hale, 295,) where, after the jury were sworn and departed from the bar, one of them went out of town; the other eleven were discharged, and the one who went out of town was fined for his misbehaviour, and the prisoner tried by another jury. A jury has likewise been discharged on account of the intoxication of one of the jurors, which rendered him incapable of performing his duty. These are the English cases, and not one of them touches the principle on which the jury were discharged in the present case, that is to say, because they could not agree upon a verdict. When we look to the State of Pennsylvania, we must, first of all, advert to her Constitution, art. 9. sect. 10, by which it is declared, "that no man shall, for the same offence, be twice put in jeopardy of life or limb." Where one is tried and acquitted on a bad indictment, he may be tried again, because his life was not in jeopardy. The Court could not have given judgment against him, if he had been convicted. But where the indictment is good, and the jury are charged with the prisoner, his life is undoubtedly in jeopardy during their deliberation. If they are divided in opinion, and especially if there should be a great majority in favour of the prisoner, he has gained an advantage of which he is deprived if the Court discharge the jury. I grant that in case of necessity they may be discharged; but if there be any thing short of absolute necessity, how can the Court, without violating the Constitution, take from the prisoner his right to have the jury kept together until they have agreed, so that he may not be put in jeopardy a second time? We should look at both sides of the question, and not forget that, in our anxiety to relieve the jury, we [Volume 5, Page 284] may be sacrificing the life of the prisoner. In the next place, it is to be observed, that in this State there is neither adjudged case nor tradition to warrant the discharge of this jury. I think myself safe in asserting, that there is no evidence of any instance since William Penn obtained his charter from Charles II., in which a jury was discharged without the consent of the prisoner in a capital case. The general understanding has been against it, and of this, powerful evidence is to be found in the act of 21st March, 1806, in which the ancient oath of a juryman is altered; but the alteration is confined to civil cases. In those cases the oath prescribed by the act is to "give a true verdict according to the evidence, unless dismissed by the Court, or the cause be withdrawn by the parties." Two inferences arise from this act: 1st. That it was not not supposed that the Court had power to discharge the jury, at their discretion, even in civil cases. 2d. That it was not thought expedient to give them that power in criminal cases. And, indeed, the expediency of investing the Courts with such power in capital cases, may be well questioned, notwithstanding the opinion of Judges of high standing in some of our sister States. There is strong proof of its not being necessary, from the fact of its never before having been exercised in Pennsylvania. Indeed, in general, the task of a jury is not hard in capital cases, because, when the evidence leaves reasonable ground for doubt, it is their duty to acquit. But a case may arise in which a jury may find great difficulty in agreeing, and some of them may be so exhausted as to put their health in danger. No one can think for a moment that they are to be starved to death. God forbid that so absurd and inhuman a principle should be contended for. Very far from it. The moment it is made to appear to the Court, by satisfactory evidence, that the health of a single juryman is so affected as to incapacitate him to do his duty, a case of necessity has arisen which authorizes the Court to discharge the jury. But it is said to be in vain to keep people together for the purpose of agreeing, when it is certain they never will agree. But by what evidence is the Court to arrive at this certainty? There is nothing for it but the declaration of the jurors, that they never can agree. Now nothing is more delusive than that kind of evidence. I have repeatedly known a jury to declare, that they never could agree, and yet when assured by the Court that they could not in conscience permit their discharge, they have agreed, and that, too, in no great length of time. But once establish the principle, that the Court has a right to discharge them, in capital cases, merely because they cannot agree, and we shall probably have few verdicts in cases of murder. In such cases there is already considerable difficulty in procuring a jury. Some persons think it criminal to be instrumental in taking the life of a man, even under the sanction of law. This Court has recently been reduced to the painful necessity of inflicting penalties on two respectable members of a respectable Society, because they absolutely refused to serve on the jury, and the prisoners would not consent to their discharge. Now all persons of that description, rather than submit to fine and imprisonment, might safely serve as jurors, under a certainty of being discharged without giving a verdict, after a few hours fasting. These are some of the reasons which induce me to doubt whether any good would arise from a change in the law, if the Court had power to change it, which it certainly has not. That is a power which belongs to the Legislature.

I will now take notice of the decisions in the Courts of other States, and it will be found that not one of them was in a capital case. The counsel for the Commonwealth has contended for the broad principle, that the Court has a discretionary power to discharge the jury in all cases. But this is expressly contradicted by the Supreme Court of New York, on whose decisions, as to the power of discharging juries, the counsel for the Commonwealth relies, for that Court decided, in the case of The People v. Barrett & Ward, 2 Caines' Cases, 100. 304, that where the jury were discharged against the consent of the defendants, (in a case of misdemeanor only,) because the district attorney was not prepared with evidence to support the prosecution, such discharge was equivalent to an acquittal, and the defendants could never be brought to trial again for the same offence. The case of The People v. Olcott, 2 Johns. Cases, 301, was a misdemeanor. The opinion of the Court was deliverd by Kent, J. who considered the subject thoroughly, and went through all the cases at that time reported. He was clear in opinion, that the Court had a right to discharge the jury when satisfied that they never could agree. But he confined his opinion to the case before him, and I remark the following expressions: "If the question in capital cases be doubtful, there is nothing to render it so in cases of misdemeanor." The case of The People v. Denton, 2 Johns. Cases, 275, was also a misdemeanor. The Court said, "That the power of discharging a jury in cases of misdemeanor, as in civil cases, rests in sound discretion, and is to be exercised with great caution. Where every reasonable endeavour has been used to obtain a verdict, and it is found that the jury cannot, or will not, agree, they must, of necessity, be discharged." The case in 2 Day. 504, (Connecticut,) was a misdemeanor. The People v. Goodwin, 18 Johns. 187, was a case of felony, (manslaughter,) but it did not touch the life of the prisoner. Spencer, C. J. delivered the opinion of the Court, and cited, with approbation, the case of The People v. Olcott. His argument, it must be confessed, reached to all cases of felony, but still he confined his opinion to the case before the Court, in which there was an ingredient of some weight, not found in any other case; and that was, that the legal termination of the Sessions was to be in half an hour, and there was a moral certainty that the jury would not agree in so short a time. The United States v. Coolidge, was before Story, J. It was a case of misdemeanor; and after the jury was sworn, an essential witness for the United States, from scruples of conscience, refused to take the oath prescribed by law. The Court suspended the trial, in hopes that the witness, who was committed for contempt, would get over his scruples before the end of the Term; and he did get over them, but the cause was not tried. The indictment was quashed, because it had been found in part on the evidence of the same witness who had been before the grand jury, and given his evidence without being legally sworn. The case of The Commonwealth v. Bowden, was decided by the Supreme Court of Massachusetts, 9 Mass. 494. It was an indictment [Volume 5, Page 285] for a highway robbery, which, I understand, was not, at that time, a capital felony. The jury was discharged, because they said they never could agree. The authority of this Court is great; but, from the report of the case, the subject does not seem to have undergone much discussion or consideration. The Court said, "That the ancient strictness of the law, in that respect, had very much abated in the English Courts, nor would it be consistent with the genius of our Government to use compulsory means to effect an agreement among jurors." I presume it could not have been intended to apply these expressions to capital felonies; for, as to them, there can be no ground for saying, that the English Courts of the present day have assumed the right of discharging the jury because they could not agree. In other respects, their strictness has been relaxed, particularly in the adjournment of a jury in cases of high treason, without the consent of the prisoner. These are all the American authorities which have been cited, and none of them come up to the case before us.

Upon the whole, then, this is a case which affects the lives of the prisoners; and the jury were discharged without, and against the consent of the prisoners, merely because they had not agreed, and said they never could agree as to the case of one of the prisoners, though, as to two of them, they had agreed, and were ready to give their verdict, if the Court would receive it. In such a case, I may be permitted to doubt whether the Judges who have discharged juries in other States, (for whose characters I entertain the most unfeigned respect,) would not have paused before they discharged the jury, and thus took away from the prisoners that chance for life which they were unwilling to relinquish. For my own part, thinking that their blood would be upon us if they were convicted of murder in the first degree on a second trial in this Court, I am of opinion, that they should be discharged from this indictment.

The Founders' Constitution
Volume 5, Amendments V and VI, Document 42
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