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they may be discharged, and the prisoner held to be tried


§ 668 a. Among the judges who hold to the right of discharging the jury before the term closes, on the fact appearing of their being unable to agree, before it must close, there is some difference of opinion concerning the application of the doctrine. The view best sustained is, that the judge shall judicially determine the fact of the inability, making the determination matter of record; but expressions differing from this statement are found in some of the cases. Thus some judges have distinguished between felony and misdemeanor;2 holding to the necessity of the adjudication mentioned, or even denying altogether the right of discharge under the cir cumstances mentioned, in all cases of felony; yet maintaining, that, in misdemeanor, the discharge is mere matter of discretion with the individual judge. Others have deemed the mere discretionary power, in distinction from the right to adjudicate the fact, to exist in cases of felony, even in capital felonies; especially, therefore, in misdemeanor.5

§ 668 b. Moreover this matter of discharging the jury is, by some judges, set down as one of necessity. And we have already seen, that necessity is a great master, overriding even the letter of statutory law. Undoubtedly it could override constitutional law also, in some cases; or rather the consti

1 See cases cited to the last section; also Poage v. The State, 3 Ohio State, 229, 238; The State v. Ephraim, 2 Dev. & Bat. 162; Ned v. The State, 7 Port. 187; Powell v. The State, 19 Ala. 577.

2 Ante, § 656.

The State v. Morrison, 3 Dev. & Bat. 115.

4 People v. Green, 13 Wend. 55; The State v. Waterhouse, Mart. & Yerg. 278. But see contra, decided in the same State with the last, Mahala v. The State, 10 Yerg. 532. See Commonwealth v. Fells, 9 Leigh, 613.

5 People v. Denton, 2 Johns. Cas. 275; People v. Olcott, 2 Johns. Cas. 301; People v. Ellis, 15 Wend. 371. And see People v. The Judges, 8 Cow. 127.

6 Ante, § 270 et seq.

tution would not be construed as applying in cases of uncon trollable necessity. But the necessity of producing a conviction could not be ingrafted, by construction, on a clause intended to shield from conviction, without violence to all principles of sound interpretation. And the necessity of getting an agreement of the jury surely differs not from the necessity of procuring a conviction. The reader, however, will be pleased to see, in a note, reference to some cases in which this doctrine of necessity is put forward, as justifying the discharge of the jury.1

$668 c. The better view of this whole question may be stated as follows: Whenever, after a trial has commenced, whether for misdemeanor or for felony, the judge discovers any imperfection which will render a verdict against the defendant either void, or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of any future proceedings. Whenever, also, any thing appears showing plainly the fact, that a verdict cannot be got within the time assigned by law for the holding of the court, he may adjudge this fact to exist; and, on making the adjudication matter of record, stop the trial, with the like result as before. But, without the adjudication, the stopping of the trial ates to discharge the prisoner. In other words, when the record shows an actual jeopardy to have taken place against the defendant, he is protected thereby from further peril for the same alleged offence. But when the record shows matters disproving the peril, it does not show the peril, whatever else it shows, and therefore it does not protect him.


§ 669. The point to which this discussion tends should be borne in mind; namely, that if, after the legal and actual jeopardy already explained has attached, the judge discharges

1 The State v. Ephraim, 2 Dev, & Bat. 162; Powell v. The State, 19 Ala. 577; Commonwealth v. Clue, 3 Rawle, 498; United States v. Coolidge, 2 Gallis. 364; Wright v. The State, 5 Ind. 290.

the jury without the prisoner's consent, the prisoner is entitled to be set at liberty, and he is not to be again brought into danger for the same offence.1 For example, where, after the jury is sworn, the evidence is found not sufficient to convict; or a material witness for the prosecution appears to be absent; or such witness is shown to be unacquainted with the nature of an oath, and so to require instruction before testifying; or the witness is suddenly taken too ill to proceed, no second trial can be had.

§ 670. There is a difference between misdirection by the judge, and misconduct of the jury. For if the judge improperly discharges the jury after jeopardy begun, the discharge, as we have seen, acquits the prisoner. Yet if a juror of his own motion escapes from the panel, so that no verdict can be rendered, this does not operate as an acquittal, and the prisoner may be tried anew. Perhaps the distinction. rests on the doctrine, that the judge is the court rather than the jury, and that to him, not the jury, is committed the care of constitutional rights; and perhaps the distinction itself is too refined, and does not exist in the facts of the law as properly understood. The North Carolina court held, that, if the jury separate by permission merely of the officer in attendance, the judge not being consulted, the prisoner is, by this separation, privileged not to be tried again. The true view seems to be, that, since the jury without the concurrence of the judge, and even contrary to his express direction, may in all


1 Wright v. The State, 5 Ind. 290; Hines v. The State, 8 Humph. 597 ; ante, § 658, 660.

2 People v. Barrett, 2 Caines, 304; United States v. Shoemaker, 2 McLean, 114; Harker v. The State, 8 Blackf. 540; Foster, 30.

Rex v. Wade, 1 Moody, 86; Reg. v. Oulaghan, Jebb, 270. See also Anonymous, 1 Leach, 4th ed. 430, note.

Rex v. Kell, 1 Crawf. & Dix C. C. 151.

The State v. Hall, 4 Halst. 256; Hanscom's case, 2 Hale P. C. 295, 296;

The State v. McKee, 1 Bailey, 651, 654.

6 The State v. Garrigues, 1 Hayw. 241.

[BOOK VI. cases acquit the defendant by verdict, if, without the defendant's consent, they do what puts it out of their power to return a verdict, he may avail himself of this, using it as an implied acquittal. But the case of one man of the panel committing the offence of escape from his fellows seems to stand on a different ground; for no one juror has the power to acquit, though he has to produce a disagreement. And if, after the disagreement, the court can adjudge the impossibility of conviction, and thereby order a new trial, why not do the same thing after the juryman has escaped?

§ 670 a. If, after the trial has commenced, a juryman is found not to have been sufficiently sworn, or to be insane,2 he may be discharged, or the error may be otherwise corrected, without entitling the prisoner to go free. There is, however, a diversity of judicial opinion here. Some courts have held, that any disqualification in a juror, showing him not to be a proper juror to sit in the particular case, though discovered after trial begun, will authorize his discharge, without giving any protection to the defendant against further proceedings.3 Yet the better view is, to consider whether the matter is a thing of which the defendant can complain, on an application for a new trial in the event of the verdict being against him; when it is, the juror should be discharged, and the defendant held to be tried anew, because the proceeding put him in no legal jeopardy; when it is a thing of which the prosecuting power alone can complain, this power has lost its right to complain by submitting the case for trial, and the prisoner may refuse his consent to the discharge, which, if ordered without his consent, frees him from any further trial. Where a juror is under some legal incompe

Rex v. Deleany, Jebb, 88.

• United States v. Haskell, 4 Wash. C. C. 402.

• United States v. Morris, 1 Curt. C. C. 23.

* Ante, § 663.

'The State v. McKee, 1 Bailey, 651; Reg. v. Wardle, Car. & M. 647.

tency to act at all as juror, as where he is an alien, and the incapacity is unknown to either party at the time the case is opened, his discharge does not prevent a new trial.1 In like manner, a prisoner tried by a jury less in number than the law requires, may be tried anew. And the same result follows, when the case is put to the jury before the pleadings are ready.3 In these cases there was no jeopardy.

§ 671. Suppose a judge, having improperly discharged the jury, still refuses to let the prisoner go, but holds him for another trial; there is some confusion in the books, whether an appeal lies from his discretion to a revising tribunal.1 The general doctrine in other cases is, that, when a matter is one of pure discretion as to the despatch of business, the course of proceeding ordered at the trial is not open to review.5 Yet the claim of a man, under the constitution, not to be a second time put in jeopardy for a crime, cannot well be brought within this class of questions; though, from the language of some of the cases, we may infer that the judges who sat in them suppose it can. Then we have the distinction, that, where the presiding judge is called to pass upon a question of fact, his decision is final; while, in matters of law, it is open to review. Applying the doctrine

1 Stone v. People, 2 Scam. 326, 335; The State v. Williams, 3 Stew. 454, 473, in which latter case however, the court deemed the discharge erroneous, and a cause of new trial, but not of release from further trial altogether. And see Brown v. The State, 5 Eng. 607.

2 Brown v. The State, 8 Blackf. 561.

a The State v. Nelson, 7 Ala. 610.

See Ned v. The State, 7 Port. 187.

Illustrations of this principle may be seen in Commonwealth v. Eastman, 1 Cush. 189; Reg. v. Wardle, Car. & M. 144.

• United States v. Haskell, 4 Wash. C. C. 402; Commonwealth v. Olds, 5 Litt. 137; United States v. Perez, 9 Wheat. 579; People v. Olcott, 2 Johns. Cas. 301; Commonwealth v. Purchase, 2 Pick. 521, 524; The State v. Shoemaker, 2 McLean, 114; United States v. Morris, 1 Curt. C. C. 23. Contra, Commonwealth v. Cook, 6 S. & R. 577; Wright v. The State, 5 Ind. 290. And see The State v. McKee, 1 Bailey, 651, 652.

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