State v. McKinney , 76 Kan. 419 ( 1907 )

The opinion of the court was delivered by

Johnston, C. J.:

This is an appeal from the conviction of G. H. McKinney for the larceny of a mule. He was brought to trial before the court and jury on June 14, 1906, and when the testimony was concluded, at 11:30 o’clock in the forenoon, the court adjourned until 1:30 in the afternoon, but overlooked the duty of admonishing the jury as to their- conduct during adjournment. When-the court reconvened the appellant objected “to any further proceedings in this case for the reason that at the adjournment of this court at 11: 30 this day the court failed to admonish the jury as required by the statute in such case made and provided.” The court sustained the appellant’s objection, and discharged the jury because of a mistrial. The case was then set down for trial on June 19, 1906, when the appellant raised the question of former jeopardy because of the first proceedings, but it was decided against him, and upon a trial of the merits there was a verdict of guilty. He insists on this appeal that when the jury were impaneled and testimony was -taken jeopardy attached; that no necessity for the discharge of the jury was shown; and that the discharge of the jury operated as an acquittal.

It is true that the discharge of a jury after the trial has begun without an overruling necessity or without the consent of the defendant will ordinarily operate as a bar to further prosecution. Here, however, there was consent, or the equivalent of consent, by the appellant, and it is well settled that if a jury is discharged at the instance of the defendant himself he cannot set up that fact as a bar to a subsequent prosecution. It is argued by appellant that he only interposed an objection and did not express any consent or intend to waive any of his rights. He objected, however, to proceeding further in the case because of a disqualification of that jury. The discharge of the jury was the necessary result of sustaining his objection, and he has no right to complain that the court took the action which he invited.

In a similar case in Ohio a question arose as to the qualification of a juror after the beginning of the trial, and the defendant objected to proceeding further before that jury, specifically stating that he did not intend to waive any of his rights, but it was held that “the discharge of the jury first ''impaneled was the necessary result 'of sustaining the objection interposed by the defendant himself, and so did not take place without his consent, but was an act done at his own instance, and would not therefore operate as an acquittal, nor bar a further prosecution.” (Stewart v. The State, 15 Ohio St. 155, syllabus.)

In People v. Gardner, 62 Mich. 307, 29 N. W. 19, a defendant objected to a jury before whom he stood in jeopardy, and coupled with the objection a statement that he did not intend to waive any of his rights. When the jury were discharged at his instance he claimed that the discharge operated as an acquittal, but the court ruled that his action amounted to consent, saying:

“There were but two possible courses-for the court to pursue at the time this objection was made by the respondent: one was to go on, against the respondent’s objection, and try the cause before the jury then impaneled; and the other was to accede to the objection made and discharge the jury.

“The discharge of the jury, under the circumstances of the case, must be deemed to have been done upon the request of the respondent, and with his consent. He has no right to complain that his objection was sustained, and the discharge of the jury with his consent cannot be set up as an acquittal.” (Page 312.)

(See, also, Mercer v. McPherson, 70 Kan. 617, 79 Pac. 118; The State v. Hibbard, ante, p. 376, 92 Pac. 304; Commonwealth v. Sholes, 95 Mass. 554; Peiffer v. The Commonwealth, 15 Pa. St. 468, 53 Am. Dec. 605; Hughes v. The State, 35 Ala. 351; State v. Davis, 80 N. C. 384; State v. Coleman, 54 S. C. 282, 32 S. E. 406; Arcia v. The State, 28 Tex. App. 198, 12 S. W. 599; The Commonwealth v. Cook and others, 6 S. & R. [Pa.] 577, 9 Am. Dec. 465; Rex v. Stokes, 6 C. & P. [Eng.] *151; Kinlock’s Case, 1 Fost. [Eng.] 16.)

It is next argued that the evidence does not support the conviction. It seems that the testimony offered in behalf of the state is singularly meager — less, it appears, than was produced on the first hearing. There is little, if any, testimony connecting the appellant with the offense other than his possession of the animal soon after it was stolen. It was shown that some mules .had been kept in a pasture in Finney county. Mr. Williams, the owner, saw them in the pasture April 8, 1906, and when he visited the pasture again, on April 11, 1906, he observed that they had been.taken out. On April 12, 1906, one of the mules was in the possession of the appellant in Sherman county, more than 100 miles from the pasture. The animal was not found by Williams until April 20, 1906, and then was in the possession of a man named Stevens, in Wallace county. There was no attempt to show that the appellant had been in Finney county or had even been absent from his home at the time of the larceny. No incriminating circumstances were shown, unless they are to be found in his statements explaining his possession of the mule. Recent possession alone does not warrant an inference of guilt. It is the unexplained possession which constitutes prima facie evidence of a larceny, and here there was an explanation which, read from the record, appears to be consistent with honesty. The presumption of guilt arising from the recent possession of the stolen property by the appellant is weakened to some extent by the lapse of time, as it appears that four days elapsed after the mule was last seen in the pasture before it was shown to be in the possession of the appellant. Just when it was taken from the pasture does not appear from the testimony.

Looking at the testimony of the defendant explaining how he came into possession of the mule, and measuring it as testimony is ordinarily measured, we cannot say that the recent possession of the stolen property was unexplained or that the scant testimony offered in behalf of the state is sufficient to uphold a verdict. The judgment is therefore reversed and a new trial awarded.

Smith, Porter, Graves, Benson, JJ., concurring.