## Facts

- Thomas Thompson, about 17 years old, was indicted in federal court for murdering Charles Hermes in Indian Territory and pleaded not guilty.
- Evidence showed Thompson had an earlier angry altercation with Hermes and later armed himself.
- At Thompson’s first trial, a jury was sworn and a government witness began testifying.
- The judge learned that a juror had served on the grand jury that returned the indictment; defense objected to proceeding with that juror, and the court discharged the jury and set the case for retrial.
- Thompson filed a plea of former jeopardy and sought a jury drawn “from the body of the district.”
- Because many regular jurors had formed opinions after hearing evidence in the aborted trial, the court directed the marshal to summon 28 bystander talesmen to help complete a new jury; the court denied motions to quash that partial panel and to require a newly drawn panel through the usual selection method.
- During jury selection, three persons earlier peremptorily challenged by Thompson were called again from the regular panel; challenges for cause were denied, and Thompson again used peremptory challenges.
- Thompson was convicted of first-degree murder and sentenced to death.

## Issues

1. Whether retrial after the mid-trial discharge of a sworn jury—due to discovery that a juror had served on the indicting grand jury—violated the Fifth Amendment protection against double jeopardy.
2. Whether the use of bystander talesmen and related rulings on the panel and juror recall procedures deprived Thompson of statutory or constitutional rights.
3. Whether the trial court’s instructions improperly treated Thompson’s prior arming after an earlier quarrel as converting an otherwise lesser homicide into murder, and otherwise misstated the murder/manslaughter distinction in the self-defense setting.

## Decision

- The Supreme Court affirmed the judgment and sentence.
- Discharging the first jury and retrying Thompson did not violate double jeopardy because the discharge was justified by manifest necessity and the ends of public justice.
- The trial court committed no reversible error in summoning talesmen from bystanders to complete the jury or in the challenged panel procedures.
- The Court criticized aspects of the homicide instructions and reiterated that prior arming alone does not elevate manslaughter to murder, but found no basis to reverse the conviction.

## Legal Principles

- A court may discharge a jury before verdict and order a new trial when, considering all circumstances, there is “manifest necessity” or the ends of public justice would otherwise be defeated; retrial in that situation is not double jeopardy.
- A juror’s disqualification for having served on the indicting grand jury can justify a mistrial when discovered after the jury is sworn.
- Where regular jurors are unavailable or disqualified, federal practice may permit summoning talesmen from bystanders to complete a jury, absent prejudice or violation of governing procedures.
- A person may lawfully arm himself after an angry altercation if he reasonably anticipates the need for self-defense in a later encounter.
- If a later killing is not in necessary self-defense, the offense grade turns on the circumstances and state of mind at the time of the killing; if those circumstances show manslaughter, it is not converted into murder solely because the defendant previously armed himself.

## Conclusion

The Court upheld Thompson’s retrial after a mistrial required by a disqualified juror and approved the use of bystander talesmen to complete the panel, while clarifying that prior preparation for self-defense—standing alone—does not supply the malice or premeditation needed to transform an otherwise manslaughter-level killing into murder.


Thompson v. United States, 155 U.S. 271 (1894)