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Vol. I.)

PEOPLE v. Cage.

[No. 3.

is in our opinion justified by the evidence. This item, as we understand it, does not apply to the services of the guardian in the management of the property. The evidence satisfies us that the visits of the guardian to the ward, which were very frequent and occupied a large portion of the guardian's time, were of great benefit and advantage to the ward, have greatly improved his condition, and are not overcharged in the guardian's account. But these two items of charge appear to us to furnish a full compensation for the ordinary duties of the trust, and for the time devoted to personal attentions and services directly to the ward. We disallow therefore the charges for extra attendance of the guardian at court and for his personal attendance upon the ward in two journeys.,

With regard to the sale of real estate and the reinvestment of its proceeds, and also with regard to the remodelling of the dwelling-house and the repairs of other estates, we are of opinion that the allowance of compensation in the shape of a commission upon the amount expended is objectionable. It is contrary to public policy, and in conflict with the true nature and purpose of such trusts, that a guardian should be a gainer by frequent changes of investment, or that his compensation should be increased by increasing the amount of expenditures on the ward's account. Any specific services, not included in the ordinary range of the guardian's duties, may be charged in his account, and it will be the duty of the judge of probate to make such reasonable allowance for them as their importance and difficulty might require. The true principle would be, adequate reward according to the circumstances of the case. Post v. Jones, 19 How. 150. We should however be very unwilling to sanction the practice of putting that compensation in the form of a commission upon the amount expended or reinvested, and therefore we cannot allow these charges in their present form.

As the guardian has adopted a system of monthly accounts, carrying the balance forward every month to the next succeeding account, it does not appear to us that his monthly charge of interest is open to objection.

Decree reversed as to all items except the first and fourth.





The defendant having been indicted for murder, a jury was duly empanelled and sworn; evidence was introduced and the case was submitted to the jury on the 30th of July. The jury remained together until the evening of the 2d of August, when the court ordered the sheriff to proceed to the door of the jury room and inquire of them if they had agreed upon a verdict, to which they replied that they " had not, and could not agree on a verdict ; " whereupon the court was adjourned for (No. 3.

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the term. The term would not have expired by operation of law until the evening of the next day. Held, that the defendant by these proceedings had been placed in

jeopardy, and that they therefore operated as a verdict of acquittal. Under the provision of the Penal Code of California, the defendant upon being placed

again on trial had a right to introduce evidence of the above facts under the plea of not guilty.

* In this ca for plaintiff sa to the door of a t'inquire of

APPEAL from the district court of the Fifteenth Judicial District, county of Los Angeles.

Kewen f Howard, for appellant.
Attorney-General Love, for respondent.

Opinion by NILES, J., — RHODES, J., McKINSTRY, J., CROCKETT, J., concurring.

The defendant was tried and convicted in the district court for the county of Los Angeles, in the month of April, 1873, of the crime of murder in the first degree. The leading question made upon the appeal relates to the legal effect of the proceedings had at a former trial of the cause in the same court, at the June term, 1872. These proceedings, as shown by the bill of exceptions, were as follows: The case was regularly brought on for trial at that term. A jury was duly empanelled and sworn; evidence was introduced, and the case was submitted to the jury on the 30th of July. The jury remained together until the evening of the 2d of August. The proceedings of that day, as far as they pertain to the question before us, are shown by the following extract from the minutes of the court:

"In this cause, counsel for the defence having been called and appearing (counsel for plaintiff failing to answer) in open court, the court ordered the sheriff to proceed to the door of the jury room where the jury in this case were under deliberation, and inquire of them if they had agreed upon a verdict, to which they replied that they had not, and could not agree on a verdict,' and the sheriff thereupon reported their reply to the court. Whereupon the court was ordered to be adjourned for the term, and the same was accordingly done by the sheriff.”

The term would not have expired by operation of law until the evening of the ensuing day.

The defendant's counsel offered to prove the foregoing facts in support of motion for a judgment of acquittal and discharge, made at the time the defendant was put upon his second trial. The motion having been denied, the defendant's counsel tendered a plea reciting substantially the same facts, which plea the court refused to accept. At the trial the defendant offered to prove the same facts under the plea of not guilty, and the testimony was excluded by the court.

There is no doubt as to the general rule that whenever a person has been placed upon trial, upon a valid indictment, before a competent court, and a jury empanelled, sworn, and charged with the case, he is then in jeopardy within the meaning of the constitutional provision which declares that “no person shall be subject to be twice put in jeopardy for the same offence ;” and that the discharge of the jury without verdict, unless by consent of the defendant, or from some unavoidable accident or necessity, is equivalent to an acquittal. Among these unavoidable necessities are Vol. I.]

PEOPLE v. Cage.

[No. 3.

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recognized the inability of the jury to agree after a reasonable time for deliberation, and the close of the term of the court. Unquestionably this defendant was placed in jeopardy at the first trial, and is entitled to the protection of the constitutional provision, unless one or the other of these necessities existed.

1. The power of the court to discharge a jury, by reason of their inability to agree upon a verdict, is undisputed. It was so held in the case of Ex parte McLaughlin, 41 Cal. 212. But it was also held that " it must be exercised in accordance with established legal rules, and sound legal discretion in the application of such rules to the facts and circumstances of each particular case.” It is evident that in a matter so gravely affecting the life or liberty of the accused, the discretion of the court should be exercised upon some kind of evidence, and its judgment should be expressed in some form upon the record. In this case there was no evidence upon which the court was authorized to act, and no apparent adjudication. The sheriff was ordered “ to proceed to the door of the jury-room and inquire of them if they had agreed upon a verdict." The extent of his official duty was to receive their reply to this question and report it to the court.

His report of the further answer of the jury that they “ could not agree on a verdict," was extra official, and was no evidence whatever upon which the court could act. If the jury were in fact unable to agree, they should have been called into court, and have announced their inability in the presence of the court and of the defendant. In the absence of this, or some equivalent showing, the court was not authorized to make an order of discharge upon this ground.

Nor was there any adjudication whatever upon this subject. It does not appear to have been determined by the court in any way that the jury were unable to agree. There was no order of discharge of the jury, other than that resulting from the adjournment of the court for the term. There is nothing in the case to show the existence of that inability to agree, which has been held to constitute that necessity which authorizes a discharge of a jury before verdict, and deprives the accused of his exemption from a second trial.

2. There is no doubt that the adjournment of the court for the term operated to discharge the jury. That effect is given to a final adjournment by section 413 of the criminal practice act, under which this trial was had. Nor can there be any doubt of the power of the court to adjourn finally before the expiration of the term limited by statute for its continuance. But it is claimed by the counsel for appellant that there was in this case no such legal necessity for the adjournment, and the consequent discharge of the jury, as would prevent him from insisting upon his former jeopardy, in bar of a second trial. And in this we agree with the counsel.

Whenever the time fixed by law for the expiration of a term arrives, the powers of the court for that term are at an end by operation of law, and the powers of the jury must terminate with those of the court to which it was attached. Here the legal necessity for the discharge is apparent, and has been frequently recognized by the courts. It is placed upon the same footing as a discharge occasioned by the illness or death


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[No. 3.

of a juryman or of the judge. But there is, presumably, no necessity for the final adjournment of the court before the fixed limit of the term is reached. If such an adjournment is had pending the trial of a criminal cause, the necessity must exist and should appear, in order to rebut the presumption of jeopardy arising from the fact of the trial. If this were otherwise, the court might be adjourned immediately after the jury had retired from the box, and before an agreement was possible. The right which the constitution intends to assure to the accused when put upon trial — to either have a verdict rendered in his case, or go free — would be made to depend upon the arbitrary discretion of the judge.

Mr. Bishop, in his work upon criminal law, after an exhaustive review of the authorities, and a discussion of the whole subject, arrives at these conclusions : “ Whenever, after a trial has commenced, whether for misdemeanor or felony, the judge discovers any imperfection which will render a verdict against the defendant either void or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of future proceedings. Whenever, also, anything appears showing plainly that a verdict cannot be reached within the time assigned by law for the holding of the court, he may adjudge this fact to exist, and on making the adjudication matter of record, stop the trial, with the like result as before. But without the adjudication, the stopping of the trial operates to discharge the prisoner. In other words, when the record shows the defendant to have been in actual jeopardy, he is protected thereby from further peril for the same alleged offence. But when it shows also, in addition to this, something which disproves the peril, it does not show the peril, whatever else it shows, and therefore it does not protect him." 1 Bish. Cr. Law, section 873.

These views are fully justified by the authorities cited in their support, and the conclusions cannot well be avoided. We are of the opinion that the discharge of the jury at the first trial of this cause was equivalent to a verdict of acquittal, and it only remains to determine in what manner the defendant should be permitted to avail himself of the right.

By section 1016 of the Penal Code, three kinds of pleas to an indictment are provided for: First, guilty ; second, not guilty ; third, a former judgment of acquittal or conviction of the offence charged. The defence, that the defendant has been before in jeopardy, if it be, as we hold, sufficient, must be taken advantage of under one or the other of these pleas. It would seem that the more convenient method of interposing à defence of this nature would be by a plea analogous to a plea of former acquittal, of which it is said to be the equivalent. But we find no authority in the statute for a plea of this kind. The case falls rather within the purview of section 1020 of the Penal Code, which declares that “all matters of fact tending to establish a defence, other than that specified in the third subdivision of section 1016, may be given in evidence under the plea of not guilty.” We hold that under the plea of not guilty the evidence of the facts attending the first trial, as disclosed by the record, should have been received. For the error of the court in rejecting this evidence, the judgment must be reversed and the cause remanded for a new trial, and it is so ordered.

February 6.

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Chief Justice WALLACE, dissenting. The former trial of this cause took place in June, 1872, and the case was given to the jury on the 30th of July, and on the same day they returned into court for further instructions, which, being given, they again retired to deliberate upon their verdict, but on the same day reappeared in court and stated their inability to agree upon a verdict, but the court then declined to discharge them. Their deliberations continued during the 31st of July and until the first day of August, on which day they again appeared in court and announced to the court that they could not agree upon a verdict and that they saw no chance for an agreement. The court offered to repeat to them the instructions already given, but they, not desiring to again hear the instructions, were again sent out for further deliberation. On August 2d, it having been reported to the court that one of the jurors was too ill to serve further, the jury were again brought into court, when, it appearing that the indisposition of the juror was not of a serious character, the jury were again sent out for further deliberation. At 7.30 P. M. of the same day, the jury not having returned a verdict, the court sent the sheriff to inquire of them if they had yet agreed upon a verdict, and that officer reported to the court that the jury had not and could not agree on a verdict." Upon receipt of this information the court was adjourned for the term, which adjournment, of course, operated a discharge of the jury. Undoubtedly it would have been better practice to have called the jury into open court, and there discharged them in the due and usual form of law, and had that been done, and had the court entered it of record that they were discharged, because of their inability to agree upon a verdict, I do not understand that, in the view of my associates, such a discharge would have operated as a bar to further proceedings on the indictment by the empanelling of another trial jury, for the jury had deliberated of the verdict from the 30th of July to the 2d of August, inclusive — some four days in all. Their discharge under such circumstances, if regularly made and entered of record, could not have been rightfully complained of by the prisoner, nor would it have operated to free him from further pros ecution before another jury thereafter.

If, then, upon these facts equally transpiring at the first trial, and which were then entered and now appear of record, the district court would have been justified in discharging the jury by an order entered in due form, I think that the prisoner cannot allege jeopardy merely because of the irregular manner in which the discharge of the jury was effected in this case. The substance of the whole proceeding is, in short, that it distinctly appeared to the district court that the jury had not agreed after some four days' actual deliberation, and it further appeared that at the time of the discharge of the jury there was no probability of their agreeing, and I am of opinion that an order made under these circumstances, which operated their discharge, must be considered to have been made (even though not so expressed in form) because of their ascertained inability to agree upon a verdict, and that, upon settled principles of law, a discharge of the jury under such circumstances should not operate an acquittal of the prisoner.

I must, therefore, dissent from the opinion of my associates upon this point.

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