United States v. Lopez

12 P.R. Fed. 305

Opinion

OdliNj Judge,

delivered tbe following opinion:

Tbe 'defendant Cecilio Miranda, by permission of tbe court,, bas filed certain pleas of former jeopardy and previous acquittal, wbicb pleas bave been met by a demurrer filed by tbe United States District Attorney, .and counsel for Cecilio Miranda bave submitted tbis matter to tbe court upon a written argument, wbicb bas been carefully considered by tbis court.

Tbe court is of tbe opinion that tbe demurrer should be sustained. Tbe pleas wbicb bave been filed do not set forth witli exactness tbe former jeopardy and tbe previous acquittal claimed by counsel, and they do- uot set forth that the said Miranda was put upon bis trial after a good information or indictment filed against him, and they do not set- forth that the-jury referred to in said pleas were properly impaneled and sworn and charged with his trial; and said pleas also fail to set forth that tbe said jury were, without tbe consent of the said Miranda and without any pressing necessity, discharged without rendering any verdict.

A close examination of said pleas as filed on behalf of said Miranda discloses tbe statements that Miranda was tried on May 27, 1921, before a jury in tbis court, and that when evidence bad been introduced tbe said jury were charged by tbe judge and retired with instructions from tbe court that in caso said jury should find a verdict, such verdict should be sealed and deposited with tbe clerk, and tbe jury should then be discharged; said pleas further set forth that a paper purporting to be a verdict was sealed and delivered, but do not state to whom such delivery was made; said pleas further set forth that such paper did not convict the said Miranda and that $he jury accordingly separated under said order.

It seems to the court that the above-recited statements set forth in said pleas are contradictory. In one place counsel for Miranda allege that the jury were directed by the court to be discharged after a verdict should be found and sealed and deposited; and in another place it is set forth in said pleas that the paper which purported to be a verdict did not convict the defendant, and that the said jury accordingly separated under the order previously given by this court. It is clear that if the court ordered that the jury should be discharged after first finding and sealing and delivering a verdict, and that tlié jury separated without finding and sealing and delivering a verdict, such separation of the jury could not be made under and in accordance with any order of this court.

Eor the reasons above stated, the court is obliged to sustain the demurrer filed by the United States District Attorney, but will allow ten days to counsel for the said defendant Cecilio Miranda in which to present amended pleas to this court, if counsel shall so desire.