Simmons v. United States, 142 U.S. 148 (1891)
Case details
Citation
142 U.S. 148
Full caption
SIMMONS v. UNITED STATES.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Dec. 21, 1891
Majority
Fuller (Chief Justice)
SIMMONS v. UNITED STATES.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 1296. Argued December 11,1891. — Decided December 21,1891. When it is made to appear to the court during the trial of a criminal case
that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused, the jury may be discharged, and the defendant put on trial by another jury; and the defendant is not thereby twice put in jeopardy, within the meaning of the’Fifth Amendment to the Constitution of the United States. The judge presiding at a trial, civil or criminal, in any court of the United
States, may express his opinion to the jury upon the questions of fact which he submits to their determination. .
This was an indictment on section 5209 of the Revised Statutes for aiding and abetting one Claassen in embezzling and misapplying the funds of a certain national bank in the city of New York. The defendant pleaded not guilty.
On January 26, 1891, the case came on for trial upon the issue thus joined; a jury was empanelled and sworn; Goodnow, one of the jurors, stated on his voir dire that he had no acquaintance with the defendant and had never seen him to p. 149his knowledge; the case was opened to the jury; and on that and following days witnesses were examined on behalf of the United States.
Before the coming in of the court on Friday, February 6, the district attorney received, and' exhibited to the defendant’s counsel, and to the judge, an’ affidavit of one Ward to the effect that during four months in 1884 the juror Goodnow and the defendant occupied adjoining rooms in a building in the city of New York, and were often seen conversing together in the halls of that building. The court thereupon adjourned the trial until Monday, February 9.
In the afternoon of February 6, the district attorney received from the defendant’s counsel a letter, commenting upon the statements in Ward’s affidavit and denying their truth, asserting that Ward had had a quarrel of long standing with the defendant, and stating that he had sent a copy of the letter to the daily papers; and the substance of this letter was published in the morning papers of February 7.
On the coming in of the court on February 9, the district attorney read affidavits to the foregoing facts, together with Ward’s affidavit, the letter of the defendant’s counsel and the publication in the newspapers; and thereupon moved the court “ to withdraw a juror, for the reason that, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”
In opposing this motion, the defendant’s counsel admitted the making of Ward’s affidavit, its communication to the counsel on both sides and to the court, and the writing and publication of the letter; but submitted an affidavit of the defendant denying that he had ever known Goodnow or h^d ever to his knowledge seen him before the trial, as well as an affidavit of the counsel explaining his action, and stating that he wrote and published his letter because he had been informed that the reasons for the adjournment of the court had been made public by the district attorney.
The judge gave his decision upon the motion as follows: ‘ I am of the opinion that the facts presented make it p. 150necessary to discharge the present jury from further consideration of this case, in order to prevent the defeat of the ends of justice, and to preserve the rights of the people and also to preserve the rights of the accused to be tried by a jury, every member of which can render a verdict free from constraint. It is manifest that the knowledge respecting the statement made by Ward, conveyed to the jury by the publication of the letter of the defendant’s counsel, makes it impossible that in the future consideration of this case by the jury there can be that true independence and freedom of action on the part of each juror which is necessary to a fair trial of the accused.” And after Goodnow and other jurors, being asked by the judge, had answered that they had read the publication in the newspapers, he added: “ Therefore such a publication under the peculiar circumstances attending it affords, in my opinion, a sufficient ground to discharge the jury at this time.” The judge thereupon ordered a juror to be withdrawn and the jury discharged. The defendant excepted to this order, and moved for an acquittal because of such discharge of the jury, and excepted to the denial of his motion.
On February 12 the case came on for trial before another jury, and a motion of the defendant to file a plea in bar on the ground of former jeopardy was opposed by the district attorney and denied by the court; and to this denial the defendant excepted.
The case was then tried, and was submitted by the judge to the jury on March 10 under instructions beginning as follows: “ I have the right, under the laws of the United States, to give you my opinion on questions of fact, but I refrain from doing so because I am well satisfied of your capacity to understand what has been testified to in all these days that we have been here engaged. I shall confine myself to stating to you the law by which you are bound, simply calling your attention to the questions of fact which are to be decided by you, for, as you know, juries decide questions of fact, and not the court.
On the next day the jury came into court and asked to be discharged from further consideration of the case. To this request the court, after ascertaining by inquiry that the jury p. 151required no further instructions in matter of law, replied as follows: “ This case has occupied a long time. It is a case of importance, and the discharge of the jury at this time would involve another trial. It seems to me that that should not be had unless in a case of necessity. I see in this case no such necessity. I cannot understand the failure to agree arises from any difference of opinion based upon the insufficiency of the evidence in this case. Whenever in the opinion of the court the testimony is convincing, it is the duty of the court to hold the jury together. Therefore I must decline your request to be discharged.”
The defendant excepted to the judge’s statement to the jury that he regarded the testimony as convincing, and, being found guilty and sentenced to imprisonment for six years in a penitentiary, tendered a bill of exceptions, which was allowed by the judge, and sued out this writ of error.
Mr. John Jay Joyce (with whom was Mr. Samuel Shellalarger) for plaintiff in error.
I. The right of the trial court to discharge the jury before verdict is to exist in cases of “ extreme and absolute necessity” {People n . Goodwin, 18 Johns. 187; & C. 9 Am. Dec. 203), “ inevitable necessity ” {Mitchell v. State, 42 Ohio St. 383, 393), “ legal necessity ” {Nolan v. State, 55 Georgia, 521), “ imperative necessity ” {McCorkle v. State, 14 Indiana, 39), only if “some inevitable occurrence shall interpose and prevent the rendering of a verdict ” (United States v. Shoemaker, 2 Mc-Lean, 114). The discretion of the court in reference to such a discharge is a “ legal discretion, and to be exercised according to known rules” {McKee’s Case, 1 Bailfey (So. Car. Law) 651; S. C. 21 Am. Dec. 499; Mount v. State, 14 Ohio, 295; & C. 45 Am. Dec. 542), “ a discretion to be used only under very extraordinary and striking circumstances.” United States v. Coolidge, 2 Gall. 364. Such a discretion cannot be absolute and irreviewable, for then there would be no protection against its wildest abuse, and it is a rule in criminal proceedings that nothing be done within the discretion of the court to the prejudice of the defendant, {United States v. Shoemaker, supra,) p. 152and in fact in almost all of the cases cited below in treating of “ jeopardy,” the very character of the discussion shows, even where it is not directly asserted, that the court of error exercised the right to review the action of the court below in discharging the jury; see also United States v. Shoemaker, ubi supra, where it is said “ the first trial might be considered an experiment to draw forth the evidence in the case and ascertain if it be insufficient whether, on another trial, it might not be made strong enough to convict — nor could this right be safely exercised under the discretion,” i.e. an unlimited discretion of the court. What shall govern this discretion ? And as to the position of the accused “ a right which depends on the will of the magistrate is no right at all.” O' Brian v. Commonwealth, 9 Bush, 333.
The true rule is that the finding of the facts on which the discharge of the jury is based by the court below is final, but the determination whether such facts constitute a case of necessity is a question of law and open to review when such facts appear upon the record.
The great majority of the authoritative text writers hold that when the jury, being full, is sworn and added to the other branch of the court, and all the preliminary things of record are ready for trial, the prisoner has reached the jeopardy, from the repetition of which our constitutional rule protects him. 1 Bishop Crim. Law, §§ 1015, 1019; Cooley Const. Lim. (6th ed.) 399; Bigelow on Estoppel (5th ed.) 89. See also Mitchell v. State, 42 Ohio St. 383, 393, and cases there cited; Nolan v. State, 55 Georgia, 521; Lovett v. State, 80 Georgia, 255; State v. Callendine, 8 Iowa, 288; State y. Tatman, 59 Iowa, 471; Josephines Case, 39 Mississippi, 613; Teat v. State, 53 Mississippi, 439 ; People n . Ba/rrett, 2 Caines, 100; King v. People, 5 Hun, 297; Commonwealth v. Cook, 6 S. & R 577; Commonwealth v. Fitzpat/rick, 121 Penn. St. 109 ; Hilamds v. Commonwealth, 111 Penn. St. 1; McCorkle v. State, 14 Indiana, 39 ; Adams v. State, 99 Indiana, 244; Powell v. State, 17 Texas App. 345; People v. Gardner, 62 Michigan, 307; O' Brian n . Commonwealth, 9 Bush, 333; Commonwealth v. Hart, 149 Mass. 7; Lee v. State, 26 Arkansas, 260; People v. p. 153Cage, 48 California, 323; State v. McKee, 1 Bailey (So. Car.) Law, 651.
II. It is not denied that in the Federal courts the trial judge in submitting a case to the jury may express his opinion upon the facts.
But it will be found from an ¡examination of the authorities that the tendency is to confine the right of the court in this respect within well-defined limits, and that in criminal cases, especially, such an expression of opinion must be closely coupled with words giving the jury to understand that they are not to be bound by it, but that the determination of all matters of fact was within their province alone.
Mr. Attorney General appeared for the defendant in error, but the court declined to hear argument.
Mr . Just ice Gray , after stating the case as above, delivered the opinion of the court.
The general rule of law upon the power of the court to discharge the jury in a criminal case before verdict was laid down by this court more than sixty years ago, in a case presenting the question whether a man charged with a capital crime was entitled to be discharged because the jury, being unable to agree, had been discharged, without his consent, from giving any verdict upon the indictment. The court, speaking by Mr. Justice Story, said: “We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think that, in all cases of this nature, 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; and, in p. 154capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. 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 descretion rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.” United States v. Perez, 9 Wheat. 579.
A recent decision of the Court of Queen’s Bench, made upon a full review of the English authorities, and affirmed in the Exchequer Chamber, is to the same effect. Winsor v. The Queen, L. R. 1 Q. B. 289, 390; & C. 6 B. & S. 143, and 7B.&S. 490.
There can be no condition of things in which the necessity for the exercise of this power is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or by reason of outside influences brought to bear on the jury pending the trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said by Mr. Justice Curtis in a case very like that now before us, “ It is an entire mistake to confound this discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with the right of challenge allowed to a party. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested fight to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case.” United States v. 'Morris, 1 Curtis C. C. 23, 37.
Pending the first trial of the present case, there was brought to the notice of the counsel on both sides, and of the court, evidence on oath tending to show that one of the jurors had sworn falsely on his voir dire that he had no acquaintance with the defendant; and it wras undisputed that a letter since written and published in the newspapers by the defendant’s counsel, commenting upon that evidence, had been read by that juror and by others of the jury. It needs no argument to prove that the judge, upon receiving such information, was
Syllabus.
fully justified in concluding that such a publication, under the peculiar circumstances attending it, made it impossible for that jury, in considering the case, to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties. The judge having come to that conclusion, it was clearly within his authority to order the jury to be discharged, and to put the defendant on trial by another jury; and the defendant was not thereby twice put in jeopardy, within the meaning of the Fifth Amendment to the Constitution of the United States.
The only other exception argued is to the statement made by the judge to the second jury, in denying their request to be discharged without having agreed upon a verdict, that he regarded the testimony as convincing. But at the outset of his charge he had told them, in so many words, that the facts were to be decided by the jury, and not by the court. And it is so well settled, by a long series of decisions of this court, that the judge presiding at a trial, civil or criminal, in any court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opinion upon the questions of fact which he submits to their determination, that it is only necessary to refer to two or three recent cases in which the judge’s opinion on matters of fact was quite as plainly and strongly expressed to the jury as in the case at bar. Vicksburg dec. Railroad v. Putnam, 118 U. S. 545; United States v. Philadelphia & Reading Railroad, 123 U. S. 113 ; Lovejoy v. United States, 128 U. S. 171.
Judgment affirmed.
McELVAINE v. BRUSH.
app eal from the cir cuit court of the united sta tes for
THE SOUTHERN DISTRICT OF NEW YORK.
No. 1125, Argued December 7,1891. — Decided December 21,1891. The provisions in the New York Code of Criminal Procedure, (§§ 491, 492,)
respecting the solitary confinement of convicts condemned to death, are Dot in conflict with the Constitution of the United States, as they are construed by the Court of Appeals of that State.
This court follows the adjudications of the highest court of a State in the
construction of the statutes of that State. Medley, Petitioner, 134 U. S. 160, explained. In re Wood, 140 U. S. 278,
followed.
The case is stated in the opinion.
Mr. George M. Curtis for appellant.
The court declined to hear argument for the appellee. Mr. Charles F. Tabor, Attorney General of the State of New York, filed a brief for appellee.
Mr . Chief Justice Fuller delivered the opinion of the court.
Charles McElvaine was convicted in the Court of Sessions, Kings County, in the State of New York, on October 23, 1889, of the crime of murder in the first degree, committed August 22, 1889, and on October 25, 1889, was sentenced to death. From the judgment of conviction an appeal was duly taken by McElvaine to the Court oJ Appeals of the State of New York, where the judgment was reversed and a new trial granted. People v. McElvaine, 121 N. Y. 250. A new trial was had and resulted on September 29, 1890, in a conviction for the aforesaid crime, and on October 1, 1890, McElvaine was again sentenced to death. A second appeal was taken to the Court of Appeals and the judgment was affirmed February 24, 1891. People v. McElvaine, 125 N. Y. 596.
The Court of Appeals sent down its remittitur to the Court of Sessions to enforce the judgment, as rendered against McElvaine, according to law, and thereafter the judgment of the Court of Appeals was made the judgment of the Court of Sessions. On March 6,1891, it was ordered and adjudged that the judgment of conviction and sentence thereon of October 1, 1890, be enforced and executed in the manner provided by law during the week beginning on Monday the 20th of April, 1891; and the court issued its warrant under the hands of the judges thereof (including the presiding judge) to the agent and warden of Sing Sing prison, commanding him to execute said p. 157judgment and sentence, by putting the condemned to death, “ in the mode, manner and way, and at the place, by law prescribed and provided.”
April 21, 1891, McElvaine, by his attorney, presented to the judge of the Circuit Court of the United States for the Southern District of New York a petition praying that a writ of habeas corpus issue to Augustus A. Brush, the then agent and warden of Sing Sing prison, requiring him to produce the body of said McElvaine before said court at some time to. be designated in said writ, and afterwards such proceedings were had that on said 21st day of April, 1891, an order was made denying the prayer of said petition, from which order McElvaine appealed to this court, which appeal was allowed by the said judge; and the clerk of the court was directed to transmit a transcript of the petition, decision and order thereon, and of the appeal. This transcript was accordingly transmitted, and, by stipulation, is accompanied by a certified copy of the warrant for McElvaine’s execution.
We have examined and considered all the grounds alleged in the petition for the allowance of the writ, but deem it unnecessary to refer to any, save those-presented in the brief and argument of petitioner’s counsel.
Sections 491 and 492 of the New York Code of Criminal Procedure are as follows:
Ҥ491. When a defendant is sentenced to the punishments of death the judge or judges hplding the court at which the conviction takes place, or a majority of them, of whom the judge presiding must be one, must make out, sign and deliver to the sheriff of the county, a warrant stating the conviction and sentence, and appointing the week within which sentence must be executed. Said warrant must be directed to the Agent and Warden of the State prison of this State designated by law as the place of confinement for convicts sentenced to imprisonment in a State prison in the judicial district -wherein such conviction has taken place, commanding such Agent and Warden to do execution of the sentence upon some day within the week thus appointed. Within ten days after the issuing of such warrant the said sheriff must deliver the defendant, p. 158together with the warrant, to the Agent and Warden of the State prison therein named. From the time of said delivery to the said Agent and Warden, until the infliction of the punishment of death upon him, unless he shall be lawfully discharged from such imprisonment, the defendant shall be kept in solitary confinement at said State prison, and no person shall be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if he shall desire one, and the members of his family.
“ § 492. The week so appointed must begin not less than four weeks and not more than eight weeks after the sentence. The time of the execution within said week shall be left to the discretion of the Agent and Warden to whom the warrant is directed; but no previous announcement of the day or hour of the execution shall be made, except to the persons who shall be invited or permitted to be present at said execution as hereinafter provided.” N. Y. Code Crim. Proc. 1890, pp. 128,129.
It is contended that the solitary confinement thus provided for constitutes cruel and unusual punishment, and brings the statute within the inhibition of the Eighth Amendment to the Federal Constitution.
The first ten articles of amendment were not intended to limit the powers of the States in respect of their own people, but to operate on the Federal government only; but the argument is, that so far as those amendments secure the fundamental rights of the individual, they make them his privileges and immunities as a citizen of the United States, which cannot now, under the Fourteenth Amendment, be abridged by a State; that the prohibition of cruel and unusual punishments is one of these; and that that prohibition is also included in that “ due process of law ” without which no State can deprive any person of life, liberty or property.
We held in the case of Kemmler, 136 U. S. 436, that this statute in providing for the punishment of death by electricity, was not repugnant to the Constitution of the United States when applied to a convict who committed the crime for which he was convicted after the act took effect; that the enactment of the statute was in itself within the legitimate sphere of the p. 159legislative power of the State, and in the observance of those general rules prescribed by our systems of jurisprudence; and that as the legislature of the'State of New York had determined that it did not inflict cruel and unusual punishment, and its courts had sustained that determination, we were unable to perceive that the State had thereby abridged the privileges or immunities of petitioner or deprived him of due process of law.
That case is decisive of this, although the character of the confinement of the condemned pending his execution was not alluded to.
All that was held in Medley, Petitioner, 134 U. S. 160, was that a statute passed after the commission of the crime of murder, which added to the punishment of death, (that being the punishment when the crime was committed,) the further punishment of imprisonment in solitary confinement until the execution, was, when attempted to be enforced against a convict so situated, an expost faeto law, and that the sentence inflicting both punishments was void. The language of the opinion upon the subject of solitary confinement tended to illustrate the conclusion arrived at, but did not enlarge it.
And in Holden v. Minnesota, 137 U. S- 483, it was assumed that a similar statutory provision was not open to constitutional objection.
It is further urged that the warrant did not direct the infliction of solitary confinement; that it indicated no specific mode of death; and that the mode and manner of the infliction of the death penalty were not specified. But as the warrant commanded the warden to cause the judgment and sentence to be executed and enforced, and the condemned to be put to death “ in the mode, manner and way and at the place by law prescribed and provided,” this would seem to be ample authority to him for the confinement, as well as the infliction of the penalty of death, as prescribed by the statute; and, so far as the confinement had taken place under the first sentence and warrant, that resulted from the voluntary act of the petitioner in prosecuting an appeal.
In People v. Brush, reported in advance of the official series in the Northeastern Reporter, vol. 28, p. 533, it was
held by the Court of -Appeals of New York, that an appeal from a judgment sentencing a defendant for murder in the first degree, operates only as a stay of execution of the death penalty, and not of the confinement of the defendant in the penitentiary pending the appeal, under the Code of Crim. Proc, of N. Y. sec. 528, which provides that “ when the judgment is of death, an appeal to the Court of Appeals stays the execution, of course, until the determination of the appeal; ” and it was also held that under the statute providing for execution by electricity, a warrant which directed that execution be done by putting defendant to death in the mode, manner and way and at the place by law prescribed and provided, was sufficient. •
The general rule of decision is that this court will follow the adjudication of the highest court of a State in the construction of its own statutes; and there is nothing in this case to take it out of that rule. We are of opinion that the record does not disclose that the petitioner is restrained of* his liberty in violation of the Constitution and laws of the United States; and, as observed by Mr. Justice Harlan in In re Wood, 140 U. S. 278, 289, it was not intended by Congress that the courts of the United States should, by writs of habeas corpus, obstruct the ordinary administration of the criminal laws of the States through their own tribunals.
The judgment must be affirmed, and the mandate issue at once, and it is so ordered.
Trez za v . Brush . Appeal from the Circuit Court of the United States for the Southern District of New York. No. 1123. Decided December 21, 1891.
Mr . Chief Justice Fuller : Trezza was convicted of murder in the first degree in the Court of Sessions of Kings County, New York, June 6, 1890, and sentenced to death. The warrant for the execution of the judgment and sentence was duly issued to the agent and warden of the state prison at Sing Sing, and under i Trezza was committed to his custody.
Syllabus.
An appeal was taken to the Court of Appeals and the judgment affirmed, (125 N. Y. 740,) whereupon, March 6,1891, the Court of Sessions ordered the judgment of conviction and sentence of death to be executed and enforced in the manner provided by law, and issued a second warrant to the warden. Trezza then presented his petition for a writ of habeas corpus to the judge of the Circuit Court of the United States for the Southern District of New York, and brings the order of that court denying its prayer to this court on appeal.
Petitioner claimed that by his imprisonment under the first warrant he had been once punished for the offence for which he had been convicted, and that solitary confinement amounted to cruel and unusual punishment, and hence that he was restrained • in violation of the Fifth and Eighth Amendments to the Constitution of the United States; and he objected also that the warrant was not sufficiently definite and specific.
The record has not been printed nor have briefs been filed on either side, and appellant was not represented by counsel when the cause came on for hearing. We have, however, carefully examined the transcript, and find no ground upon which to arrive at a different conclusion from that just announced in the case of McElvaine.
The judgment is affirmed, and the mandate ordered to issue at once.