In the case of Simmons v. United States, 142 U. S. 148, 35 L. ed. 968, 12 Sup. Ct. Rep. 171, the Supreme Court said: "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 5th Amendment to the Constitution of the United States."

In the case of Thompson v. United States, 155 U. S. 271, 39 L. ed. 146, 15 Sup. Ct. Rep. 73, 9 Am. Crim. Rep. 209, in which it developed that one of the jury had been a member of the grand jury that found the indictment and was discharged for that reason, the court said: "Courts of justice are invested 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, and to order a trial by another jury; and a defendant is not thereby twice put in jeopardy."

For the same reasons, another jury is necessary where it appears that one of the jury originally selected, by reason of conscientious scruples or mental attitude, will not permit his mind to pass upon facts of the case, or to reach a conclusion of conviction which will result in the punishment of the accused, and law-double therefore the con- excusing jeopardystitutional provi- Juror besion against being religious put twice in jeopardy cannot be invoked here to relieve him from the conviction based upon trial by another jury.

Constitutional

cause of

scruples.

The assignment of error raising this question will have to be overruled, and the judgment of the Circuit Court affirmed.

I. Introductory, 849.

II. Substitution after discharge for bias or disqualification, 849.

III. Substitution after discharge due to illness of juror, 852.

I. Introductory.

This annotation is confined to the effect, as puiting the accused twice in jeopardy, of substituting a juror for one who, after the jury is complete, is found to be incompetent, becomes ill, or otherwise is unable to serve. The cases where, under such circumstances, the entire jury is excused and a new jury called, are not considered.

The cases are not in precise accord as to the time when the panel is deemed complete so that the accused is put in jeopardy. This note does not consider that question but, assuming 28 A.L.R.-54.

the completion of the panel, confines its discussion to the effect of thereafter excusing a juror and substituting another.

II. Substitution after discharge for bias or disqualification.

It has been held in several cases that when the jury panel is legally completed, a subsequent discharge of one or more jurors propter defectum, and a substitution of a new juror or jurors, will sustain a plea of former jeopardy. O'Brian v. Com. (1872) 9 Bush (Ky.) 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520; Ward v. State (1839) 1 Humph. (Tenn.) 253; Tomasson v. State (1903) 112 Tenn. 596, 79 S. W. 802.

In Tomasson v. State (Tenn.) supra, a jury was duly impaneled and sworn.

Thereafter the court discharged two jurors as incompetent to serve,-one because of relationship to the defendant, and the other because he had not resided within the county for a time sufficient to render him competent to sit as juror,-and allowed two new jurors to be selected and sworn in the place of the two discharged. The defendant moved for his discharge, and filed his plea of once in jeopardy. The motion was denied and the trial resulted in a verdict of guilty. The court said: "The question presented is, has the defendant been placed twice in jeopardy by the proceedings in the court below? . . The jurors in this case were discharged for reasons 'propter defectum.' . . . We are of opinion defendant was in jeopardy, and is entitled to his discharge."

In the early case of Ward v. State (1839) 1 Humph (Tenn.) 253, after the jury had been duly selected and sworn, the court discharged ten jurors because they were not freeholders of the county as required, and subsituted ten other jurors in their places. The defendant's counsel moved for a discharge of the prisoner. The motion was denied and the trial resulted in a conviction. The court said: "It is too late after a jury has been sworn to challenge any of its members propter defectum. . . . In the present case the court permitted the attorney general not only after the jury had been sworn, but after the prisoner had been put upon his deliverance, to challenge ten of the jurors propter defectum, and set them aside against the prisoner's consent, and compelled him to select ten others, who, in conjunction with the remaining two, returned the verdict upon which the judgment sought to be reversed was pronounced. That this was an illegal act cannot be controverted; it was error, and such error as cannot be corrected by reversing and remanding the cause for further proceedings, because it will be impossible ever to place the prisoner in the same position he occupied when his jury was thus illegally broken up. The only remedy is to discharge him. . . . The judgment of the circuit court must, therefore, be reversed and the prisoner discharged."

In O'Brian v. Com. (Ky.) supra, after the jury was duly selected and sworn, one of the jurors announced from the jury box that he had been a member of the grand jury which found the indictment. The court, of its own motion and against the objections of the accused and his counsel, discharged the juror and had another summoned in his stead. The trial then progressed and resulted in a verdict of guilty. The conviction was reversed, and the accused then filed a plea of former jeopardy. It was held that this plea would be sustained.

A contrary view has been taken in other cases. State v. Duvall (1914) 135 La. 710, L.R.A.1916E, 1264, 65 So. 904; State v. Pritchard (1881) 16 Nev.

101.

In State v. Duvall (La.) supra, the plea of former jeopardy was denied. It appeared that, after the jury had been duly selected and sworn and the indictment read, the court, on its own motion further examined the jurors and discharged one of them for incompetency and bias, directed a new one to be selected and sworn, and proceeded with the trial. The defendants then pleaded that they were being put twice in jeopardy for the same offense, contrary to the guaranty of the Constitutions of the United States and the state of Louisiana. The court said that in State v. Robinson (1894) 46 La. Ann. 769, 15 So. 146, they considered it settled that, after a jury had been set apart and sworn for the particular case, the defendant had been conducted to a period of jeopardy, and was entitled to the protection of the Constitution and law when the jury was set aside against his objection; but added, quoting from the Robinson Case: "This rule is not an absolute one and applicable to all cases alike. There are exceptional cases to which the foregoing principles do not apply; as, for instance, when there is any illegality in the composition of the jury; or a disqualified person is found on the panel; or the jury are known to have been guilty of misconduct,—for any of which causes the verdict might be set aside. The rule invoked and applied in this case

is that where there is a complete jury duly impaneled and sworn to try the issue joined, and to the legality of which no objection is urged,—the accused is, at the moment, placed in jeopardy." The court in the Duval Case said further: "The instant case falls within the exceptional cases mentioned.

. . An unfit person was found on the panel, and the court ordered that he should be replaced by a person properly qualified to sit on the jury. . We have reviewed the action of the trial judge, and we have concluded that the absolute necessity for removing the objectionable juror existed, and that the action of the judge was lawful and correct. The evidence clearly shows that the said juror had stated that he would not convict any person charged with the crime that the defendants were charged with. He was incapable of doing justice to the state or the accused.

We are of opinion that the facts constitute no legal bar to a future trial. The prisoner had not been convicted or acquitted, and may again be put upon his defense. 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." See also State v. Nash (1894) 46 La. Ann. 194, 14 So. 607, which turned, however, on a ruling that the accused had not been placed in jeopardy at the time the substitution of jurors was made.

In State v. Pritchard (1881) 16 Nev. 101, it appeared that after twelve jurors had been duly selected and sworn one of the jurors was found to be incompetent. The court excused him and impaneled another juror in his place. After the juror was discharged, the defendant interposed a special plea of former jeopardy. It was held that the substitution of a juror did not furnish evidence to support the defendant's plea of former

jeopardy, as the discharge was necessary to the ends of justice.

The reported case (GREEN v. STATE, ante, 842), seems to uphold the rule that the determining factor is whether the disqualification of the juror is such as to preclude a legal trial. In that case the court distinguishes earlier decisions in the same jurisdiction (Tennessee), set out supra in this subdivision, and holds that where, after the completion of the panel, a juror announces that religious scruples forbid him to take any part in inflicting punishment for crime, it is proper to substitute another juror, and the accused is not put twice in jeopardy by a trial after the substitution.

A plea of former jeopardy was denied in Roberts v. State (1895) 72 Miss. 728, 18 So. 481, by virtue of a constitutional provision that "there must be an actual acquittal or conviction on the merits to bar another prosecution." After the jury had been impaneled, accepted, and sworn, and a witness for the state examined, a juror stated to the court that he recollected serving on the grand jury that found the indictment. The district attorney moved to discharge the juror as incompetent. The court asked the counsel for the defendant if there was any objection. As none was offered, the court granted the motion, substituted another juror, and proceeded with the trial. Holding that there was no double jeopardy, the court said that the provision quoted "changes, fundamentally, the old rule, and wisely puts an end to the unmeritorious escape of persons charged with crime, who had been only technically, not really, once tried."

The failure of the accused to make timely objection to a substitution of jurors after the completion of the panel has been held to preclude him from basing a plea of former jeopardy thereon. Thus, in Kingen v. State (1874) 46 Ind. 132, the court stated the facts and its conclusion as follows: "A jury had been selected and agreed upon by the parties, and had been sworn to try the cause. On the meeting of the court in the afternoon, it was discovered for the first time

that one of the jurors was not a householder or a freeholder of the county.

. . The court thereupon directed the juror to retire from the box in consequence of his incompetency, and directed the sheriff to supply his place with another person, which was done, and the new juror was interrogated as to his qualifications, and the jury as newly constituted was duly sworn. On the discharge of the incompetent juror, the defendant moved to be discharged from the prosecution, on the ground that she had been in jeopardy, and that the discharge of the juror was equivalent to an acquittal. The defendant, as well as the state, by failing to interrogate the jury which was first sworn, as to their being householders, or taking other steps to ascertain their competency in that respect, waived any objection on that ground. . . . The defendant, doubtless, by the swearing of that jury, was put in jeopardy, and she was entitled to have a verdict at their hands. If the court discharged them without sufficient legal reason and without the consent of the defendant, the conclusion seems to be irresistible that such discharge was equivalent to an acquittal of the defendant, and she could not rightfully be put upon trial again for the same offense." But "she was present in court in person and by counsel, and suffered the juror to be discharged without exception or objection. . The defendant clearly waived any objection to the discharge of the juror by failing to object or except thereto, and by her silence in this respect she must be deemed to have consented."

In Minyard v. State (1915) 17 Ga. App. 398, 87 S. E. 710, after the jury had been selected and sworn, one of the jurors stated to the court that he was one of the grand jurors that found the indictment. The court of its own motion discharged the juror, but without any objection from the defendant, and proceeded with the trial with another juror substituted in place of the one discharged. It was held that a plea of former jeopardy was properly overruled.

III. Substitution after discharge due to illness of juror.

Where after the completion of the panel a juror becomes ill, the court may discharge him and substitute another juror, and a trial before the jury as reconstituted is not second jeopardy. State v. Hazledahl (1892) 2 N. D. 521, 16 L.R.A. 150, 52 N. W. 315; DeBerry v. State (1897) 99 Tenn. 207, 42 S. W. 31.

The facts and the holding in De Berry v. State (Tenn.) supra, were stated by the court as follows: "It appears from the record that during the progress of the trial, and after the evidence had been partially heard, one of the jurors became too ill to discharge his duties, and thereupon he was withdrawn from the panel and discharged by the court. A new juror was then impaneled, and the trial commenced de novo. The' defendant interposed a plea of once in jeopardy. . . . The action of the court is expressly authorized by § 5840 of Shannon's Code, which provides, viz.: 'Should a juror, either in a civil or criminal action, during the progress of the trial, become so unwell that, in the opinion of the court, he is unable to serve, he may be discharged, and a new juror summoned instanter, impaneled, and the trial recommenced.' . . . The action of the court in this matter was in strict conformity with the provisions of the Code and the adjudications of this court, and affords no ground for the plea of once in jeopardy."

In State v. Hazledahl (N. D.) supra, the court stated the facts and its conclusion as follows: "After the jury had been sworn, and a portion of the testimony introduced, a juror was taken sick, and was unable to sit further on the jury. The court thereupon made an order discharging such juror, entering the reasons therefor in the order, and directed that a new juror be called and duly sworn as a juror in the case, and that the trial of the case begin anew. . Defendant objected

to being tried before the new jury impaneled after the discharge of one of the original jurors on account of his illness, and based his objection upon the theory of a former jeopardy. But