
    Robert Finley Stewart v. The State of Ohio.
    The plaintiff in error, defendant below, was put on trial for a penitentiary . offense. After a jury had been impanneled and sworn, a juror arose in open court, and stated that be had been one of the grand jurors by whom the indictment had been found. Pertinent inquiries had been openly made upon this subject by counsel for the state, before the jury was sworn, to which the juror had failed to respond. The defendant's counsel, thereupon, in answer to an inquiry by tbe court, objected to proceeding in the trial with the jury then impanneled, at the same time declining to waive any of the defendant's rights. The jury was thereupon discharged by the court, and another jury was impanneled in the usual mode, and the trial proceeded, the defendant objecting thereto. Held—
    That the discharge of the jury first impanneled 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.
    Error to the court of common pleas of Trumbull county.
    The plaintiff in error was indicted in the court below for tbe crime of stabbing with intent to kill, and, in a second count, for stabbing with intent to wound.
    It appears from a bill of exceptions, which is made part of the record, that the cause coming on for trial upon the plea of not guilty, a jury was called, “ whereupon the attorneys for the state made a statement of the case to said jury, requesting them, or either of them, if they or any one ■ of them had formed or expressed any opinion in the case, or had been a member of the grand jury which found the bill of indictment, that it áhould be made known, and such juror or jurors be excused from sitting upon said jury. No one making known any such excuse or want of qualification, the state, by its attorney, and defendant, proceeded to make their peremptory challenges. The said plaintiff refused to make any challenge; thereupon the defendant’s attorneys challenged from the jury Warren D. Hall. No other challenges were made. The jury were then sworn according to law. The indictment was then read to the jury by one of the plaintiff’s attorneys, and the case, on behalf of the state, was stated to said jury, and the witnesses on behalf of the state were then sworn, and Amos Woodruff, one of the plaintiff’s witnesses, was put upon the witness’ stand. Thereupon one of said jurors, Jacob W. Pattengell, arose and stated that he was one of the grand jurors which found the bill of indictment against the defendant in this case. The indictment showed the same fact. The court thereupon found that said Jacob W. Pattengell was upon the grand jury that found the indictment upon which defendant is on trial, and is also a member of the present jury. The plaintiff’s attorneys then asked defendant’s attorneys what they intended to do. And, in answer, the defendant’s attorneys asked the attorneys for the plaintiff what they intended to do. Thereupon the court inquired of the plaintiff’s attorneys what they intended to ’do. To which they replied that they would like to have the court suggest what they had better do. The court then asked the defendant’s attorneys what they intended to do, and defendant’s attorneys replied that they intended to stand upon the defendant’s rights, and could not, nor would not do anything, or take any course to waive the defendant’s rights in any respect whatever. At this point the plaintiff’s attorneys requested the court to adjourn until next Friday, being next day of the session . . . which would give an opportunity [to determine] what action to take in the matter. The plaintiff’s attorneys, however] in the meantime had retired into an adjoining room for consultation, and returned into court. The court then asked defendant’s attorneys if they objected to proceeding with this jury. They replied that they did. The court then discharged said jury. ' Thereupon the court ordered the sheriff to call another jufy, which was done; to which jury no challenges were made by either plaintiff’s or defendant’s attorneys; but the defendant, in the meantime objected to again being put upon trial, or to being again put in jeopardy by said proceedings or trial before said last-named jury; which objections were overruled by the court; and to which rulings defendant excepts. The plaintiff then proceeded to offer evidence tending to prove the averments of the indictment, and after introducing all its evidence, rested its case. Thereupon defendant introduced his testimony tending to disprove the averments of said indictment, and also pleaded in bar (and offered for that, purpose in evidence the record aforesaid, and doings and proceedings before said first jury) of said prosecution, the proceedings and doings before said jury so first impanneled and sworn, etc., and as being a former acquittal, and as claiming that he could not legally be put in jeopardy twice for the same alleged offense. And the defendant rested. Thereupon the defendant’s attorneys asked the court to charge the jury that, if they found the allegations of said record of said proceedings herein set forth before said first impanneled jury to be true, that, in that case, the defendant had once been put in jeopardy, and could not again be put in jeopardy, and must be acquitted. But the court refused to so charge the jury; but, on the contrary, charged the jury that said proceedings and record was no bar to this prosecution, and was not a former acquittal. To all which holdings and rulings the defendant excepts.” The jury having, by their verdict, found the defendant not guilty upon the first count of the indictment, and guilty upon the second, defendant moved for a new trial; this motion was overruled, and an exception taken. Defendant then moved in arrest of judgment, which motion was also overruled, and exception taken by the defendant. Each of these motions was made on the ground that after the discharge, by the court, under the circumstances stated, of the jury first impanneled and sworn to try the issue, the defendant could not be subjected to a trial of such issue before another jury, without infringing upon his constitutional right not to be twice put in jeopardy for the same offense. After overruling these motions severally, the court proceeded to judgment and sentence against the defendant, upon the verdict. This judgment the plaintiff in error seeks to reverse, on the ground that the discharge of the jury first impanneled operated to acquit and discharge him from further prosecution, and should have been held to be a valid bar to any subsequent trial and conviction, for the same offense.
    
      Taylor Jones, and Wilson Leslie, for plaintiff in error:
    No person shall be twice put in jeopardy for the same offense. Const., art. 1, sec. 10.
    A person is put in jeopardy when the jury is sworn and charged with his case. Mounts v. The State, 14 Ohio Rep. 295; Poage v. The State, 3 Ohio St. Rep. 229.
    The court discharged the jury without the consent of Stewart. He consented to nothing, but objected to every thing. There was no extreme or absolute necessity for discharging the first jury impanneled and sworn, and in doing so the court did not exercise “ a legal discretion according to known rules.” Poage v. The State, supra.
    
    When the juror, Pattengell, announced that he had been on the grand jury it was too late for Stewart to object or for the court to discharge. If the fact had been known it was ground for challenge, but it was competent to waive the right to challenge. Shoemaker v. The State, 12 Ohio Rep. 43. But the jury having been sworn, it was Stewart’s right to be tried by that jury, and he could not be deprived of that right without and express relinquishment. Comm. v. Andrews, 3 Mass. 132-3; even if by that, Comm. v. Mahar, 16 Pick. 120.
    
      L. P. Critchjield, attorney general, and Milton Sutliff, and Geo. M. Tuttle, for the state,
    cited, in argument: Story’s Com., vol. 3, p. 659, sec. 1781; U. S. v. Perez, 9 Wheat. 579; U. S. v. Cooledge, 2 Gallis. 364; 1 Inst. 227, b; 3 Inst. 110; People v. Olcutt, 2 Johns. Cas.300; Henley v. The State, 6 Ohio Rep. 399; Poage v. The State, 3 Ohio St. Rep. 229; 
      Dobbins v. The State, 14 Ohio St. Rep. 493; Mounts v. The State, 14 Ohio Rep. 304; Smith v. The State, 8 Ohio Rep. 294; Shoemaker v. The State, 12 Ohio Rep. 43, 52; Parks v. The State, 4 Ohio St. Rep. 234; Doyle v. The State, 17 Ohio Rep. 222; Dillingham v. The State; 5 Ohio St. Rep. 280; Daily v. The State, 4 Ohio St. Rep. 57; and, in conclusion, insisted that the court very properly discharged the first jury and reorganized another before proceeding to the trial of the case, and that Stewart has no reason to complain that the court gave him the benefit of his objection to the jury as first organized.
   Scott, J.

The fact that one of the jurors impanneled for the trial of the defendant in the court below had been a member of the grand jury which had found the indictment in the case, was clearly a good cause for challenge. But this right of challenge might be waived by the defendant, and, if he had full knowledge of the fact, his failure to make the objection at the proper time, would constitute such waiver, and justify the overruling of a subsequent motion to set aside the verdict on account of this fact. And if the defendant had seen fit, expressly or impliedly, to waive the objection to the juror, inasmuch as the proper time for challenge had passed by, and the jury had been sworn, it was too late for the state to object to proceeding with the trial. At that stage of the proceedings, the defendant had a right to demand such a disposition of the case, either by the verdict of the jury or otherwise, as would bar another prosecution for the same crime. Of this he could not be deprived, at the will of the court or of the prosecuting attorney, by the entry of a nolle prosequi or the discharge of the jury, without an absolute necessity therefor. Such action, taken without his consent, would operate as an acquittal, and be a bar to any further or subsequent prosecution for the same cause. To hold otherwise, .would be to contravene the constitutional guaranty against being twice put in jeopardy for the same offense. Mounts v. The State, 14 Ohio Rep. 295; Baker v. State, 12 Ohio St. Rep. 214; Dobbins v. The State, 14 Ohio St. Rep. 493.

But, there is no doubt, that the jury might have been discharged at the defendant’s instance, or by his consent, without affecting the right of further prosecution on behalf of the state. That the jury might be discharged, with the prisoner’s consent, or at his request (even in a capital case), before any evidence had been offered, was expressly held in the case of the Kinlock, in 1746 (Foster, 27, 28), and the more modern cases, both in England and the United States, on this subject, uniformly affirm, or concede this right of discharging a jury, by consent. And the main, if not the only question arising upon this record is, whether the jury first impanneled and sworn is not shown to have been discharged at the instance, or with the consent of the defendant, or at least as the necessary result of his own voluntary act.

The circumstance which created the apparent embarrassment in the court below, and which finally led to the discharge of the jury, arose from no error of the court, nor was the state responsible for its existence. It arose from the negligence or inadvertence of one of the jurors, who failed, when interrogated at the proper time, to disclose the importtant fact that he had been one of the grand jurors by whom the indictment in the case then about to be tried had been found. If there had been any negligence on the part of counsel, in failing to ascertain this fact before the jury was impanneled and sworn, it was as justly chargeable to the attorneys for the defendant, as to those who represented the state. Both had been, in fact, misled by the silence of the juror when he ought to have responded to inquiries upon the subject. Still the defendant was entitled to a trial by an impartial jury, who had not prejudged the issue to be submitted to them, and he was clearly not disposed to waive any of his rights. Indeed, looking to the whole colloquy which took place between the court and counsel, it is quite' evident that the defendant desired to be regarded as consenting to nothing, which might, in .any respect, prejudice his possible rights in any stage-of the trial; and-that he desired to secure for himself, by objecting to proceeding with the trial, the full right and benefit, in the event of his conviction, of a motion for a new trial, on account of the fact then first disclosed; and at the same time, if possible, to obtain all the chances of an acquittal from the jury then impanneled, by refusing to consent to its discharge. He had a clear right to one fair and legal trial by an impartial jury, but his right to demand two trials, as a prerequisite to a legal conviction and sentence, can not be conceded. Nor can he reasonably be allowed to acquire such an advantage, by occupying, at the same time, two positions, utterly inconsistent with each other. There were but two possible courses of action open to the court; either to proceed with the trial before the jury then impanneled, or to discharge the jury. It was simply impossible not to do either; and a direct and absolute objection to the one, was necessarily a demand for the other. The jury was not discharged, until the defendant’s counsel had been asked in open court, if they objected to proceeding in the trial with the jury then impanneled, and had replied explicitly that they did. The objection thus openly and directly made was (and, under the circumstances, perhaps properly) sustained by the court; and as a necessary and unavoidable result the discharge of the jury followed. This was for the manifest benefit of the party on trial; it was necessary in order to afford him a trial by an impartial and unbiassed jury; and the principle stated in the case we have cited from Foster’s C. C. is of proper application, “ That all general rules touching the administration of justice must be so understood as to be made consistent with the fundamental principles of justice.” The plaintiff in error has no right to complain because his own objection was not overruled. And as the necessary result of its being sustained, must be held to have occurred, at the instance of the defendant below, the discharge of the jury was not without his consent, and therefore did not operate as an acquittal or otherwise bar a further prosecution.

Judgment affirmed.

Brinkerh off, O.J., and Ranney, Wilder, and White, JJ., concurred.  