Keerl v. Montana, 213 U.S. 135 (1909)
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Keerl v. Montana
No. 113
Argued March 15, 1909
Decided April 5, 1909
213 U.S. 135
ERROR TO THE SUPREME COURT
OF THE STATE OF MONTANA
Syllabus
Where the accused, during the trial, specifically claims that the action of the state court in denying his plea of once in jeopardy operated to deprive him of his liberty without due process of law contrary to the Fourteenth Amendment, this Court has jurisdiction under § 709, Rev.Stat., to review the judgment.
Where a state court has the right to discharge the jury if it satisfactorily appear after a reasonable time that a disagreement is probable, and the state court so finds after the jury has been out for twenty-four hours, and discharges the jury, the result is a mistrial, and the accused cannot on a subsequent trial interpose the plea of once in jeopardy by reason thereof, United States v. Perez, 9 Wheat. 579, and so held in regard to a trial in Montana where the jury had been discharged under § 2125, Penal Code of that state.
Quaere, and not decided, whether the due process provision of the Fourteenth Amendment, in itself, forbids a state from putting one of it citizens in second jeopardy.
33 Mont. 501 affirmed.
On April 24, 1902, an information was filed in the District Court of Lewis and Clark County, Montana, charging the defendant, now plaintiff in error, with the crime of murder. Upon a trial, he was found guilty of murder in the second degree, and sentenced to imprisonment for life. The judgment was reversed by the supreme court, and a new trial ordered. 29 Mont. 508. The record recites that, on the second trial, the jury retired for deliberation on Jury 12, 1904, and that, on July 14, 1904, they returned into court,
whereupon it satisfactorily appearing to the court that there is a reasonable probability that the jury cannot agree, the court ordered the jury discharged from the further consideration of this cause,
and remanded the defendant to the custody of the sheriff. On the third trial, the defendant interposed a plea of once in jeopardy, on the ground that the jury was improperly discharged at the end of the second trial. The Montana statute provides:
Except as provided in the last section [a section respecting sickness or accident], the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless at the expiration of such time as the court may deem proper, it satisfactorily appears that there is reasonable probability that the jury cannot agree.
Penal Code, § 2125; Montana Code, Vol. 2, p. 1061.
The court overruled the plea, and, as a result of the trial, the defendant was found guilty of manslaughter, and sentenced to imprisonment for the term of ten years. This judgment was sustained by the supreme court. 33 Mont. 501. Thereupon the case was brought here on writ of error.