On April 24, 1902, an information was filed in the district [213 U.S. 135, 136] 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:
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: [213 U.S. 135, 137]
Mr. Justice Brewer delivered the opinion of the court:
The defendant during the trial having specifically claimed that the action of the court in denying him the benefit of the plea of once in jeopardy operated to deprive him of his liberty without due process of law, contrary to the 14th Amendment to the Constitution of the United States, our jurisdiction of the writ of error cannot be questioned. Boston Beer Co. v. Massachusetts, 97 U.S. 25 -30, 24 L. ed. 989-991; Bohanan v. Nebraska, 118 U.S. 231 , 30 L. ed. 71, 6 Sup. Ct. Rep. 1049; Boyd v. Nebraska, 143 U.S. 135 -161, 36 L. ed. 103-109, 12 Sup. Ct. Rep. 375.
On the merits, there is little room for controversy. In United States v. Perez, 9 Wheat. 579, 580, 6 L. ed. 165, 166, this court passed upon the question arising under the 5th Amendment, whose language is in this respect more specific than that in the 14th Amendment, the former applying to the courts of the United States, the latter to the action of the state, and it was held:
This has been the settled law of the Federal courts ever since that time. Logan v. United States, 144 U.S. 263 -297, 36 L. ed. 429-441, 12 Sup. Ct. Rep. 617; Thompson v. United States, 155 U.S. 271 -274, 39 L. ed. 146- 149, 15 Sup. Ct. Rep. 73; Dreyer v. Illinois, 187 U.S. 71 -85, 47 L. ed. 79-86, 23 Sup. Ct. Rep. 28.
Those decisions dispose of the question here presented, without considering whether the 14th Amendment in itself forbids a state from putting one of its citizens in second jeopardy,-a question which, as it is unnecessary, we do not decide. The record shows that the jury were kept out at least twenty-four hours, and probably more, and the trial court found that there was a reasonable probability that the jury could not agree. This is the only Federal question, and, finding no error therein, the judgment of the Supreme Court of Montana is affirmed.