
23 F.2d 156 (1927)
KASTEL
v.
UNITED STATES.
No. 8.
Circuit Court of Appeals, Second Circuit.
December 19, 1927.
*157 Vincent T. Follmar, of New York City, for plaintiff in error.
Charles H. Tuttle, U. S. Atty., of New York City (David W. Peck and Laurens Hastings, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
L. HAND, Circuit Judge (after stating the facts as above).
Upon the plea of double jeopardy the defendant has the burden of proof, and must make out his case. Com. v. Wermouth, 174 Mass. 74, 54 N. E. 352; People v. Schepps, 231 Mich. 260, 203 N. W. 882; State v. Ackerman, 64 N. J. Law, 99, 45 A. 27; State v. Williams, 43 Wash. 505, 86 P. 847; Harlan v. State, 190 Ind. 322, 130 N. E. 413; Price v. State, 104 Miss. 288, 61 So. 314; Barber v. State, 151 Ala. 56, 43 So. 808; Territory v. West, 14 N. M. 546, 99 P. 343; State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L. R. A. (N. S.) 977; Jacobs v. State, 100 Ark. 591, 141 S. W. 489; Storm v. Territory, 12 Ariz. 109, 99 A. 275; 1 Bishop, New Crim. Proc. § 816 (2). Three questions arise under the plea at bar: First, whether the judge exercised a proper discretion in instructing the clerk to discharge the jury at 9:30 and then absenting himself; next, whether the discharge interrupted the jury's deliberations before they had come to a permanent deadlock; last, whether, if it did, this operates as an acquittal.
The last question, as we view it, is not presented, and we may pass it. Some of the cases turn upon local statutes. People ex rel. Stabile v. Warden, 202 N. Y. 138, 95 N. E. 729; People v. Greene, 100 Cal. 140, 34 P. 630; State v. Klauer, 70 Kan. 384, 78 P. 802; State v. Shuchardt, 18 Neb. 454, 25 N. W. 722. The common-law doctrine in Pennsylvania (Com. v. Fitzpatrick, 121 Pa. 109, 15 A. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757), and originally in California (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436), has been carried to lengths that would scarcely be followed elsewhere. On the other hand, the original rule in New York apparently was that breaking up the jury's deliberations did not effect an acquittal. People v. Green, 13 Wend. 55. Cullen, C. J., dissenting, in People ex rel. Stabile v. Warden, so announced, and nothing in the majority opinion suggests the opposite. Whatever the right doctrine, we will assume arguendo that the jury must not be interrupted, at least until they themselves wish to be discharged.
In the case at bar it appears to us that the defendant has not shown that they were so interrupted. We must concede that, had the bailiff merely discharged them at 9:30, this would have been proved; prima facie, *158 they have hope of agreeing till they say the contrary. Yet it was not a strain upon their request to read it as meaning that, if they could not agree in 15 minutes, they could not agree at all. Indeed, the probabilities are that this is what they did mean; else it is hard to see why they put a period to their further consultation. At best, we think that the defendant has failed affirmatively to prove that they were discharged before they themselves gave up, or even that they had not in substance announced that they did give up.
Coming next to the question of the judge's discretion, it is at least debatable whether, if exercised at all, it can be reviewed by writ of error. Winsor v. Queen, L. R. 1 Q. B. 289. But we may pass the point, because the period set of 8½ hours was so plainly long enough that no objection could be taken to it, and, indeed, none has been, as we understand it. What the defendant complains of is that the judge, by absenting himself at 4 o'clock, could not, and, indeed, never did, discharge them himself, but rigidly bound the clerk to do so when the time arrived, regardless of what might meanwhile happen. He thus cut himself off from revising his original decision, which, though perhaps proper enough when made, he might have seen fit to change later.
That the judge was not justified in leaving the jury without means of communicating with him we entirely agree. He should have been always accessible to them, for the trial was still on. Nevertheless, he had in fact fixed the time for their discharge, reasonable in that he was under no duty to keep them out all night, and at most the defendant lost nothing but the chance that he might change his mind, and that further confinement might result in an acquittal. Such straws will not outweigh proven guilt, nor need we be to-day ridden by such nebulous possibilities. There must always be a compromise between the convenience of the jury and the protection of the accused, or we should revert to archaic barbarities, though now committed with an opposite purpose. While, therefore, we concede the possibility and the impropriety, we decline to make them an excuse.
The next point requires little discussion. The only evidence to support the motion to quash was the defendant's affidavit on information and belief that the grand jury had no competent evidence upon which to indict him. If this were enough, we should be obliged to try over the proceedings before the grand jury in every case. If it turned out that there was competent evidence, the accused would none the less have the prosecution's case in advance to contrive against at his leisure. In any event the trial would be complicated to an inordinate extent, and our criminal procedure become even more unwieldy, dilatory, and uncertain. We agree with the rulings in the Eighth Circuit, never insensitive to the protection of personal rights. McKinney v. U. S., 199 F. 25; Murdick v. U. S., 15 F.(2d) 965. See, also, U. S. v. Morse (D. C.) 292 F. 273, 278; U. S. v. Reed, Fed. Cas. No. 16,134; U. S. v. Cobban (C. C.) 127 F. 713.
As to the third point, the indictment was for a scheme to defraud customers of their money by falsely saying that their shares would be kept for them. The allegation that thus they would be induced to pay interest on their debit balances was merely an incident. To confine the charge to that feature would have defeated the very plain intendment of the indictment as a whole. Finally, the judge was not called upon to characterize the evidence as direct or circumstantial. In the case relied on, People v. De Martini, 218 N. Y. 561, 112 N. E. 542, there had been an error in describing circumstantial evidence as direct, and that, too, upon a trial for murder.
Judgment affirmed.
