WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Defendant Robert Mays was indicted on a charge of rape, was found guilty by a jury in the criminal court of Cook County, and sentenced to the penitentiary for a term of 25 years. He brings this writ of error contending that he was twice put in jeopardy for the same offense in violation of his constitutional rights, and also that he was not proved guilty beyond a reasonable doubt.
Defendant was first placed on trial on this indictment before a jury on June 25, 1958, in the courtroom of Judge Walker Butler. After the evidence and arguments had been heard, and after the jury had been instructed and had retired to consider their verdict, Judge Butler found it necessary, for reasons of other business, to absent himself from the courtroom, and he requested Judge Henry C. Dieringer, a judge of the same court, to receive the verdict of the jury in his absence. The jury had deliberated four hours without reaching a verdict, whereupon Judge Dieringer called the jury to the courtroom and asked the foreman: "Without telling me how you stand, will you give me your opinion as to whether or not you can arrive at a verdict in this case?" The foreman replied: "No sir, I don't believe we can." Judge Dieringer then asked: "Is it your opinion that the jury is hopelessly deadlocked?" to which the foreman replied, "I honestly believe it is, yes, sir." Judge Dieringer then stated: "In that event the court will declare a mistrial," and he directed the clerk to withdraw a juror, and dismissed the jury.
The common-law record of the second trial recites, with reference to the proceedings in the first trial when the jury had failed to agree on a verdict: "And by agreement between the State's Attorney, counsel for the people, and the said defendant and his counsel, now here given in open court, it is ordered that the aforesaid jury be discharged from the further consideration of this cause."
In the supplemental record, which consists of stenographic transcript of so much of the first trial as pertains to the discharge of the jury, there appears a colloquy between Judge Dieringer, the Assistant State's Attorney, and the defense counsel, as follows:
"Mr. Winn (Assistant State's Attorney): Your Honor, can I ask the court to hold this case on the call until tomorrow morning?
The Court: Yes, please hold it until tomorrow morning.
Mr. Marks (Defense counsel): I have a rather busy schedule in the morning. Mr. Winn, can we hold it on the call until sometime next week?
Mr. Winn: Any day you want.
Mr. Marks: Tomorrow morning is bad for me.
The Court: Pick your own date.
Mr. Marks: Let's hold it on the call until next Monday or Tuesday, will you, please.
The Clerk: That is by agreement, continued to July 1st."
The case did not go to trial on July 1, 1958, but instead the defense counsel presented a motion to discharge the defendant on the ground that Judge Dieringer did not have authority to pose the question whether the jury could agree and that he did not have authority to declare a mistrial. This motion was supported by an affidavit of Marshall Patner, one of the lawyers who represented the defendant in the first trial. This affidavit recites, inter alia, that when Judge Dieringer stated that he was going to call the jury to ask the foreman whether the jury was dead-locked the ...