Keerl v. Montana

On April 24, 1902, an information was filed in the district U.S. 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, 101 Am. St. Rep. 579, 75 Pac. 362. 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, 85 Pac. 862. Thereupon the case was brought here on writ of error.

Messrs. Thomas J. Walsh and Cornelius B. Nolan for plaintiff in error.

Messrs. W. H. Poorman, Albert J. Galen, and E. M. Hall for defendant in

Statement by Mr. Justice Brewer:  Mr. Justice Brewer delivered the opinion of the court: