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(147 Tenn. 299, 247 S. W. 84.)

held by the Supreme Court of the United States, where it developed that a juror was prejudiced against the defendant, he might be discharged without affording to the defendant the benefit of the plea of twice in jeopardy. A distinction is clearly recognized in our cases between causes propter defectum and causes which show that the juror had prejudged the case, or who by virtue of his state of mind could not, or would not, in fact, pass upon the guilt or innocence of the accused. Cartwright v. State, 12 Lea, 620; Brakefield v. State, 1 Sneed, 218. It is true that in the Brakefield Case the question arose upon a motion for a new trial. It appears that after the trial it developed that one of the jurors had stated before he was taken upon the jury that the accused ought to be hung, thus showing prejudgment. In that case, however, the question was not merely one which went to the competency of the juror, but was one which had the effect to nullify the verdict of the jury; it being manifest that the verdict was not based upon the law and the evidence, but influenced by a prejudgment of the case independent of the facts. In the case of Turner v. State, 128 Tenn. 27, 157 S. W. 67, Ann. Cas. 1914D, 693, a new trial was granted because the trial judge accepted a juror, who upon his voir dire examination had stated that he was in favor of the enforcement of prohibition laws in the country, but not in town. The decision of the court was based upon the conclusion that the juror was not a good and lawful man. The court said: “The juror should be as impartial as the judge himself. “These are the requirements of the common law, as well as of our modern statutes and decisions, and by our Constitution the duty is imposed on this court, and upon all of the judges of the state, to see to it that trial by jury shall remain inviolate, and that men shall be tried by impartial juries.”

The conclusion was that the juror, such as the one in question, had not the qualification of impartiality, and was therefore not competent to sit on a case involving the crime as to which he confessed such principles of conduct. The court in that case directed attention to two other cases, illustrating the principle applied. Fletcher v. State, 6 Humph. 249, and Ray v. State, 108 Tenn. 282, 67 S. W. 553. In the latter case the juror, being asked if he had any conscientious or religious scruples against capital punishment, replied that he did not believe in hanging— “The law is wrong; I don’t believe in hanging.” The juror was peremptorily challenged by the state, and a new trial was sought because the practice of making inquiries of jurors was highly prejudicial. With respect to these cases, the court said: “In the first of these cases no one can doubt that an affirmative answer by a proposed juror to the inquiry propounded would have discovered his incompetency to sit in the trial of the case. So, in the second instance, the answer of the venireman disclosed his incompetency to sit as a juror on the trial of a capital case. In neither instance could the juror be considered impartial, or a “lawful,” or lawabiding, man.”

Such qualifications all jurors must pass in order that the courts may give effect to the verdicts of juries.

A case dealing with a situation very similar to the one under consideration is that of State v. Hansford, 76 Kan. 678, 14 L.R.A. (N.S.) 548, 92 Pac. 551. During the trial of that case, after a witness had been examined, one of the jurors made the statement to the court: “After hearing the plaintiff’s testimony yesterday, there was refreshed in my mind a circumstance similar to the one that we are trying, or have been trying here, and it has put my mind in such a shape that I am not sure whether I could give both the state and the defendant the same trial, and I ask to be excused.” The juror was excused. The court's action was made the basis of a motion to discharge the accused, because he was thereby placed twice in jeopardy. It was conceded in that case that the rule was universal that a juror might be discharged for sickness or other physical disqualifications which unfit him for the performance of his duties, and that insanity or mental disability would equally disqualify him. Likewise, it is established in our jurisdiction that such disqualification would be within the interpretation of the Constitution, which permits

the discharge of a juror for neces-.

.# causes. The court in that case SalCl . “If the disqualification is such as would frustrate the ends of justice and prevent a lawful verdict, the rights of the defendant, as well as the interests of the public, require the court to arrest the progress of the trial and start afresh with a legal and impartial jury. If during the trial the court should learn of a corrupt interference with a juror, or that through some outside sinister influence one of the jury had agreed to vote for conviction regardless of the testimony, it would be conceded that a pressing necessity for the discharge of the jury had occurred. “When a juror, as in this case, confesses to an incurable prejudice which disqualifies him from exercising the functions of a juror or acting impartially as between the parties, a continuance of the trial would be a farce, as the object of a trial— a fair and impartial verdict—becomes an impossibility. After learning of this situation by a judicial inquiry, nothing was left for the court except to discharge that jury and impanel another.” The trial court based its action unon the conclusion that the facts developed by the juror rendered him mentally incompetent, and it is insisted by the attorney general for the state that the case should be

treated as if the insanity of the juror had developed. As we under. stand the juror's mental attitude, we doubt if it could be said that he is disqualified for mental deficiency or insanity. The juror evidently entertained a religious scruple against acting as a judge or juror and in passing judgment of conviction against those charged with crime, but, be that as it may, whether he was a competent juror or not, it is quite sure that his mental attitude was such that he would and could not determine the question of the defendant's guilt or innocence, if it involved his conviction. In other words, he declined to be a party to the verdict. He would be a mere nonentity, and either there would have been no verdict at all or else it would have been the verdict of eleven men merely acquiesced in by the particular juror. A legal jury must be composed of twelve men, each of whom must pass upon and determine the guilt or innocence of the accused. If the man had been insane, he could not have participated in the verdict; his attitude here was such as that he would not have participated in the verdict, and there would have been either noverdict, or an unlawful one, which would necessarily have to be set aside if unfavorable to the defendant. Not only is the defendant entitled to the unanimous vote of all the jurors before he can be convicted, but the state is entitled to have the unanimous verdict of twelve jurors before he is acquitted. There was thus developed a situation wherein it was entirely impossible to secure a verdict, and we have presented a case where the discharge of a juror became a necessity in order to prevent a miscarriage in the administration of justice. Certainly this conclusion is entirely justified by the leading cases on the subject, especially of the Supreme Court of the United States, and fully meets the require. ments of our own decisions, and is in accordance with good sense and reaSOn.

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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

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ANNOTATION.

Substitution of juror after completion of panel as sustaining plea of double jeopardy.

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, Lone 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. 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.”

The

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 remov

ing 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

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