Davis v. State , 144 Tex. Crim. 474 ( 1942 )

The State challenges the correctness of our conclusion that the trial court erred in refusing to sustain appellant's plea of former jeopardy. It is insisted not only that the record affirmatively reflects that the appellant consented to the jury's discharge, but also that it fails to reflect that the appellant did not consent to the discharge of the jury.

The State is correct in its contention that the burden of proof is upon the accused to establish a plea of former jeopardy. 12 Tex. Jur. 651; O'Connor v. State, 28 Tex. App. 288[28 Tex. Crim. 288], 13 S.W. 14; Spannell v. State, 83 Tex.Crim. R.,203 S.W. 357; Skelton v. State, 110 Tex.Crim. R.,10 S.W.2d 554.

Upon the issue as to whether the appellant did or did not consent to the discharge of the jury, the record reflects that, after the jurors had been deliberating upon their verdict for an hour or an hour and a half, they reported to the trial judge — in open court, and in the presence of the appellant — that they were unable to reach a verdict; that the jury stood eleven to one; and that it was the opinion of the jurors, collectively and individually, that it was impossible for them to agree upon a verdict. Upon this information from and representation by the jurors, the trial court thereupon discharged them. The appellant was not asked whether he did or did not agree thereto. The trial court advised appellant that he was going to discharge the jury, but, so far as this record reveals, the appellant stood mute, neither objecting nor consenting in person.

Do these facts show that the jury was discharged by and with the consent of appellant, within the contemplation and meaning of Art. 682, C. C. P.? Said Article reads as follows:

"After the cause is submitted to the jury, they may be discharged when they can not agree and both parties consent to their discharge; or the court may in its discretion discharge them where they have been kept together for such time as to render it altogether improbable that they can agree."

It appears that the rule announced in the case of Hipple v. State, 191 S.W. 1150, 80 Tex.Crim. R., is controlling here. In that case, the prosecuting witness, a little girl, had testified upon direct examination by the State. Counsel for the accused, upon cross-examination, developed facts showing her to be incompetent to testify. The trial court examined the witness and also so found. The State, claiming surprise, asked for and was granted leave to withdraw its announcement of ready for trial. The jury was thereupon discharged. Appellant's counsel consented to such discharge. Appellant, who was present, "stood mute, neither objecting nor consenting in person." At a subsequent trial, the foregoing facts were set out in a plea of former jeopardy, the State's demurrer to which was sustained.

The court, speaking through Judge Prendergast, held, in effect, that the agreement of counsel to the jury's discharge was binding upon Hipple, and that the plea of former jeopardy was not well taken, and affirmed the judgment of conviction. Judge Harper concurred. To that conclusion Judge Davidson dissented, it being his view that the right of consent or non-consent to the discharge of the jury was one personal to the accused and could not be waived by counsel. During the pendency of the motion for rehearing in that case, Judge Harper was succeeded by Judge Morrow as a Judge of this Court. Judge Morrow, in granting the motion for rehearing and setting aside the affirmance, agreed with Judge Davidson and held, in effect, that the consent of counsel in that case to the discharge of the jury did not constitute consent of the accused, and announced the rule to be:

"The law does not impose upon the defendant in a criminal case the duty of protesting against the discharge of a jury where it was not authorized by law."

Applying the rule announced to the instant case, we find that here, as determined in our original opinion, the discharge of the jury was not authorized under the provision of the statute (Art. 682, C. C. P.) relative "where they have been kept together for such time as to render it altogether improbable that they can agree."

We remain convinced of the correctness of our original conclusion, viz., that, under the provision of the statute mentioned, deliberation by a jury for an hour or an hour and a half, in the instant case, did not authorize its discharge.

From what we have said, it follows that the appellant, in the instant case, was not called upon to protest against the jury's discharge, which was unauthorized; and, the record failing to affirmatively reflect that he did consent to the discharge, the plea of former jeopardy was well taken and should have been sustained.

The State's motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals, and approved by the Court.