The opinion of the court was delivered by
Johnston, C. J.:
The appellant contends that the discharge of the jury in the manner and for the reasons stated and without his consent bars further prosecution. It is a well-settled principle of common and constitutional law that a person cannot be put in jeopardy a second time upon the same charge. It is a maxim of the common law that no one should be twice vexed for the same cause, and this rule has been incorporated in the federal and state constitutions. It finds expression in our own constitution in these words: “No person shall ... be twice put in jeopardy for the same offense.” (Bill of Rights, § 10; Gen. Stat. 1901, § 92.) Would a further trial of the appellant after the discharge of the jury constitute a double jeopardy? When an accused is placed upon trial, before a competent court and jury, upon a sufficient information or indictment, jeopardy is- said to attach, and he cannot be put in jeopardy a second time unless the jury be discharged [682]*682from rendering a verdict by reason of some overruling necessity or the consent of the defendant. In this instance there was neither express nor implied consent, and the question remains, Did the interruption of the trial and the continuance of the prosecution at a later time subject the defendant to a second jeopardy, or was it any more than the continuance of the sainé jeopardy? He insists that there was no imperative necessity for discharging the jury from rendering a verdict, nor sufficient reasons to warrant the court in declaring a mistrial. The disclosure of the juror revealed the fact that he was disqualified to sit in the case and that the trial was proceeding with only eleven qualified and competent jurors.
It is conceded that the sickness or other- physical disqualification of a juror or a judge which would unfit him for the performance of his duties would constitute a manifest necessity for a discharge of the jury. He would be equally disqualified by insanity or other mental disability, and when it is satisfactorily shown to the court by proper evidence that a juror is not in a fit condition of mind and has not the qualifications which the law requires it is clearly within its power and discretion to discharge the jury and declare a mistrial. 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— [683]*683a 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.
In Simons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968, one of the jurors swore on his voir dire that he had no acquaintance with the defendant. During the trial it was brought to the attention of the court by an affidavit that there had not only been acquaintance but conversation between this juror and the defendant, and also it was undisputed that a letter since written and published in the newspapers commenting on that evidence had been read by that juror and other members of the jury. The trial court discharged the jury and held the defendant for further trial. The decision of the supreme court as to the right to discharge the jury was given in the syllabus of the case, as follows:
“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 fifth amendment to the constitution of the United States.”
In Thompson v. United States, 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146, it appears that after the trial had begun it was disclosed that a member of the jury was disquálified by having been a member of the grand jury that found the indictment on which the prosecution was based. When that jury was discharged and another impaneled the defendant pleaded that he had been once in jeopardy upon the same charge, but this was overruled and the trial resulted in a verdict of guilty. It was held on appeal, following a number of [684]*684earlier cases, that “courts of justice are invested with 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.” (Syllabus.)
The case of In re Ascher, 130 Mich. 540, 90 N. W. 418, 57 L. R. A. 806, was one where after the jury were sworn and some of the witnesses had testified information came to the trial judge of the prejudice and misconduct of jurors after they were impaneled. An investigation was made which disclosed that a juror on his voir dire examination had wilfully concealed a material fact, and further that he entertained strong bias and prejudice in the case. It also appeared that he had been guilty of misconduct which betrayed his prejudices. Another juror and the officer in charge of the jury were found to have been also guilty of misconduct. The court concluded that it was within its power and was its imperative duty to discharge the jury and declare a mistrial. A question of jeopardy arose upon the appeal, and it was held that “where, after the jury is sworn in a criminal case, the court finds that a juror is so biased that he is unfit to sit in the cause, the jury may be discharged, and the respondent will not be deemed to have been placed in jeopardy by the proceedings.” (Syllabus. See, also, United States v. Perez, 22 U. S. 579, 6 L. Ed. 165; Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Dilworth v. The Commonwealth, 12 Grat. [Va.] 689, 65 Am. Dec. 264; State v. Allen, 46 Conn. 531; Commonwealth v. McCormick, 130 Mass. 61, 39 Am. Rep. 423; United States v. Morris, 1 Curt. [U. S. C. C.] 23, 26 Fed. Cas. p. 1323; State v. Davis, 31 W. Va. 390, 7 S. E. 24; Roberts v. State, 72 Miss. 728, 18 South. 481; Ochs v. The People, 25 Ill. App. 379; State [685]*685v. Diskin, 34 La. Ann. 919, 44 Am. Rep.
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The opinion of the court was delivered by
Johnston, C. J.:
The appellant contends that the discharge of the jury in the manner and for the reasons stated and without his consent bars further prosecution. It is a well-settled principle of common and constitutional law that a person cannot be put in jeopardy a second time upon the same charge. It is a maxim of the common law that no one should be twice vexed for the same cause, and this rule has been incorporated in the federal and state constitutions. It finds expression in our own constitution in these words: “No person shall ... be twice put in jeopardy for the same offense.” (Bill of Rights, § 10; Gen. Stat. 1901, § 92.) Would a further trial of the appellant after the discharge of the jury constitute a double jeopardy? When an accused is placed upon trial, before a competent court and jury, upon a sufficient information or indictment, jeopardy is- said to attach, and he cannot be put in jeopardy a second time unless the jury be discharged [682]*682from rendering a verdict by reason of some overruling necessity or the consent of the defendant. In this instance there was neither express nor implied consent, and the question remains, Did the interruption of the trial and the continuance of the prosecution at a later time subject the defendant to a second jeopardy, or was it any more than the continuance of the sainé jeopardy? He insists that there was no imperative necessity for discharging the jury from rendering a verdict, nor sufficient reasons to warrant the court in declaring a mistrial. The disclosure of the juror revealed the fact that he was disqualified to sit in the case and that the trial was proceeding with only eleven qualified and competent jurors.
It is conceded that the sickness or other- physical disqualification of a juror or a judge which would unfit him for the performance of his duties would constitute a manifest necessity for a discharge of the jury. He would be equally disqualified by insanity or other mental disability, and when it is satisfactorily shown to the court by proper evidence that a juror is not in a fit condition of mind and has not the qualifications which the law requires it is clearly within its power and discretion to discharge the jury and declare a mistrial. 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— [683]*683a 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.
In Simons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968, one of the jurors swore on his voir dire that he had no acquaintance with the defendant. During the trial it was brought to the attention of the court by an affidavit that there had not only been acquaintance but conversation between this juror and the defendant, and also it was undisputed that a letter since written and published in the newspapers commenting on that evidence had been read by that juror and other members of the jury. The trial court discharged the jury and held the defendant for further trial. The decision of the supreme court as to the right to discharge the jury was given in the syllabus of the case, as follows:
“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 fifth amendment to the constitution of the United States.”
In Thompson v. United States, 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146, it appears that after the trial had begun it was disclosed that a member of the jury was disquálified by having been a member of the grand jury that found the indictment on which the prosecution was based. When that jury was discharged and another impaneled the defendant pleaded that he had been once in jeopardy upon the same charge, but this was overruled and the trial resulted in a verdict of guilty. It was held on appeal, following a number of [684]*684earlier cases, that “courts of justice are invested with 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.” (Syllabus.)
The case of In re Ascher, 130 Mich. 540, 90 N. W. 418, 57 L. R. A. 806, was one where after the jury were sworn and some of the witnesses had testified information came to the trial judge of the prejudice and misconduct of jurors after they were impaneled. An investigation was made which disclosed that a juror on his voir dire examination had wilfully concealed a material fact, and further that he entertained strong bias and prejudice in the case. It also appeared that he had been guilty of misconduct which betrayed his prejudices. Another juror and the officer in charge of the jury were found to have been also guilty of misconduct. The court concluded that it was within its power and was its imperative duty to discharge the jury and declare a mistrial. A question of jeopardy arose upon the appeal, and it was held that “where, after the jury is sworn in a criminal case, the court finds that a juror is so biased that he is unfit to sit in the cause, the jury may be discharged, and the respondent will not be deemed to have been placed in jeopardy by the proceedings.” (Syllabus. See, also, United States v. Perez, 22 U. S. 579, 6 L. Ed. 165; Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Dilworth v. The Commonwealth, 12 Grat. [Va.] 689, 65 Am. Dec. 264; State v. Allen, 46 Conn. 531; Commonwealth v. McCormick, 130 Mass. 61, 39 Am. Rep. 423; United States v. Morris, 1 Curt. [U. S. C. C.] 23, 26 Fed. Cas. p. 1323; State v. Davis, 31 W. Va. 390, 7 S. E. 24; Roberts v. State, 72 Miss. 728, 18 South. 481; Ochs v. The People, 25 Ill. App. 379; State [685]*685v. Diskin, 34 La. Ann. 919, 44 Am. Rep. 448; The People v. Reagle, 60 Barb. [N. Y.] 527; Cluverius v. The Commonwealth, 81 Va. 787; State v. Cason, 41 S. C. 531, 19 S. E. 918; State v. Bell, 81 N. C. 591; State v. Vaughan, 23 Nev. 103, 43 Pac. 193; 1 Bishop’s New Crim. Law, § 1039.)
There is a contention that the statute prescribes the only, grounds which justify the discharge of a jury from rendering a verdict, and that the ground upon which the discharge was based in the present instance is not one of those enumerated in the statute. In behalf of the state it is plausibly argued that the statute does not undertake to specify all of the instances which would justify the discharge of a jury; that under the constitutional provision as to jeopardy, and the common-law rules in vogue when it was adopted, a jury may be discharged not only for reasons named in the statute but whenever it appears to the court that there is a manifest necessity for the act or that the ends of justice would otherwise be defeated. However that may be, the grounds specified in the statute appear to be sufficient to include the one upon which the court based its ruling in this case. It provides:
“The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there .is no probability of their agreeing.” (Gen. Stat. 1901, § 4728.)
The word “accident,” as used in the section, fairly admits of an interpretation covering the occurrence in question. It is variously defined as an undesigned contingency; a happening without intentional causation; that which exists or occurs abnormally; something unusual or phenomenal; an uncommon occurrence. The discovery and disclosure by the juror of his unfitness to sit in the case was an unexpected and. unusual happening. It could not have been anticipated by the court or counsel. His answers on his voir dire exam[686]*686ination did not develop the disqualification, and apparently the juror did not learn the nature of the case sufficiently to recall the prejudice which he had in cases of this character. It was a contingency which could not have been foreseen or well avoided by any one connected with the trial, unless it was the juror himself, and his examination does’ not betray any dishonesty of purpose. It therefore appears to have been an accidental occurrence — one which showed a manifest necessity for the discharge of that jury and the impaneling of one which could render a just and impartial verdict.
The sufficiency of the inquiry and of the finding of a necessity for the discharge is challenged. To warrant a discharge it has been decided that there must be, “first, an absolute necessity for such discharge; second, the court must make inquiry and find’ and determine that such necessity existed at the time of the discharge; and, third, the essential facts as to such necessity and the finding of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge.” (The State v. Allen, 59 Kan. 758, 761, 54 Pac. 1060.) The particular contention here is that the statement made by this juror was not upon oath, and that the question of the necessity for the discharge was therefore not heard and determined by judicial methods. There is little room for this contention. In the preliminary part of the trial this juror was sworn to make true answers in response to questions as tp his qualifications as a juror. It was not necessary that this juror should be resworn each time that he was called upon to answer questions as to his qualifications during the trial. The obligation and virtue of the oath remained with him, and the inquiry in question was made under it. Aside from that, he had taken an oath well and truly to try the case. The court made a finding of the necessity for a discharge of the jury. The [687]*687facts brought out in the inquiry, as well as the findings of the court, were made a matter of record, thus complying with the rule stated in The State v. Allen, supra.
The court correctly sustained the demurrer to the plea of former jeopardy, and its judgment is affirmed.