In a criminal case tried in a district court of a territory and
coming here by way of the supreme court of the state into which the
territory was afterwards converted, defenses based on the Fifth and
Sixth Amendments (in part not raised until the case reached the
latter court) are within this Court's jurisdiction to consider.
Quaere whether, under the Constitution, a defense of
former jeopardy is waived if not made before the prosecution has
introduced its evidence in chief?
Defendant was arraigned and pleaded not guilty to an indictment
for murder; on a day subsequent, without withdrawing the plea, he
demurred to the indictment as not charging an offense. The demurrer
being overruled, both sides being ready for trial, a jury was duly
impaneled and sworn and the witnesses for both sides called and
sworn, but, on motion of the prosecuting officer, the court
dismissed the jury and directed that the defendant be arraigned
anew. This was done forthwith, the accused pleaded not guilty
again, and both sides being ready, the same jury was sworn once
more and the trial proceeded to a conviction.
Held
(1) Not double jeopardy.
(2) Due process and the right to a jury, under the Fifth and
Sixth Amendments respectively, did not require that a new jury be
impanelled after the second arraignment and plea.
(3) Under the circumstances, dismissing the jury to allow of the
second arraignment and plea, whether a necessary formality or not,
was clearly permissible.
17 N.M. 666 affirmed.
The case is stated in the opinion.
Page 242 U. S. 200
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
In the District Court of the Territory of New Mexico, the
accused, on May 9th, 1910, pleaded not guilty to an indictment for
murder. On May 24, 1911, without withdrawing his plea, he demurred
to the indictment on the ground that it charged no offense. The
demurrer was overruled, and, both parties announcing themselves
ready for trial, a jury was impaneled and sworn and the witnesses
for both sides were called and sworn. The record then states:
"That thereupon it appearing to E. C. Abbott, Esq., District
Attorney, that defendant had not been arraigned and had not plead
since the overruling of defendant's demurrer, upon motion. the
court dismissed the jury and directed that the defendant be
arraigned and plead."
The accused was accordingly again at once arraigned, and pleaded
not guilty, and, both sides again announcing themselves ready for
trial, the same jury previously impaneled was sworn and the trial
proceeded. At the close of the evidence for the prosecution the
defendant moved for a directed verdict on the ground, among others,
that the record showed that he had been formerly placed in jeopardy
for the same offense, since it appeared that, in the same case, a
jury had been impanelled and sworn and thereafter had been
dismissed from a consideration of the case. The motion was denied,
and a conviction of manslaughter followed. The same ground was
relied upon in a motion in arrest of judgment which was denied, and
from the judgment and sentence subsequently entered an appeal was
prosecuted to the supreme court of the territory.
Pending the appeal, New Mexico was admitted to the Union and the
case was heard by the supreme court of the state. In that court, in
addition to the contention as to former jeopardy, the accused urged
that he had been
Page 242 U. S. 201
denied due process of law and had been deprived of the right to
a trial by jury because, from the record, it appeared that,
although a jury was impanelled before he was arraigned and pleaded
not guilty, that jury was dismissed, and it did not appear that any
jury was impanelled after his arraignment and plea. The court held
this contention to be without merit, and concluded from a
consideration of the common law doctrine of former jeopardy, in the
light of which it deemed the constitutional provision on the
subject was to be construed, that the question concerning it was
raised too late, since it was first presented to the trial court
after the conclusion of the state's case. To the judgment of
affirmance giving effect to these conclusions this writ of error
was prosecuted. 17 N.M. 666.
As the case was tried in a territorial court, the denial of
asserted rights based upon the Fifth and Sixth Amendments presents
questions within our jurisdiction.
Without expressing any opinion as to the correctness of the
ruling of the court below concerning the failure to promptly raise
the question of former jeopardy, although on this record it may be
conceded it presents a federal question, we pass from its
consideration, since we think the contention that the accused was
twice put in jeopardy is wholly without merit. Under the
circumstances, there was, in the best possible view for the
accused, a mere irregularity of procedure which deprived him of no
right. Indeed, when it is borne in mind that the situation upon
which the court acted resulted from entertaining a demurrer to the
indictment after a plea of not guilty had been entered and not
withdrawn, it is apparent that the confusion was brought about by
an overcautious purpose on the part of the court to protect the
rights of the accused. Whether or not, under the circumstances, it
was a necessary formality to dismiss the jury in order to enable
the accused to be again arraigned and plead, the action taken was
clearly within the bounds of sound judicial discretion.
Page 242 U. S. 202
United States v.
Perez, 9 Wheat. 579,
22 U. S. 580;
Dreyer v. Illinois, 187 U. S. 71,
187 U. S. 85-86.
See United States v. Riley, 5 Blatchf. 204, in which the
facts were in substance identical with those here presented.
As to the contention concerning the denial of due process and
the right to jury trial, it is not disputed that in the first
instance a jury was legally impanelled. The argument is, however,
that constitutional rights of the accused were violated because,
after the order of dismissal and the plea of not guilty, there was
a failure to impanel a jury, although the same jury previously
drawn was at once sworn and tried the case. But we think the
absolute want of merit in the proposition is manifest from its mere
statement, and is additionally demonstrated by what we have
previously said.
Affirmed.