#### *Commonwealth v. Fells.

June, 1838.

Criminal Law — Power of Court to Discharge Jury.'*— In any criminal case, whether capital or other, the court has power, for good cause, to discharge the jury, and put the accused upon his trial before a new jury.

Same — Same—Case at Bar. — Such power held to have been properly exercised in a capital case, where the jury had been kept together for nine days without agreeing on a verdict, and the health of one of the jurors was suffering from confinement, while the personal attentions of another juror were required by the situation of his wife.

Sidney Fells, a free man of colour, was indicted in the circuit superiour court of law and chancery for the county of Henrico and city of Richmond, for an assault upon William R. Geddy, a free white person, with intent to kill him ; an offence which, by the statute passed March 15, 1832 (Sess. Acts of 1831-2, ch. 22, § 6 ; Supplem. to Rev. Code, p. 247,) is made punishable with death.

On the 16th of May 1838, a jury being impanelled for the trial of the prisoner, and having heard the evidence, were sent out of court to consult of their verdict, and' after some time, not having agreed in a verdict, were adjourned over in the usual manner until the next day; and having the case again committed to them, again returned into court after some time, and declared that they could not agree. They were again adjourned as before, and so from day to day for nine days. On the ninth day, the jury being still unable to agree, one of the jurors addressed to the court and counsel engaged in the case, a letter in the following words: “Richmond, 25th May 1838. To the hon. judge P. N. Nicholas, and the counsel in the case of the Commonwealth v. Fells. Gentlemen,T herewith send you a certificate from dr. Bohannan, and in addition to that, would state that I am boarding with my family, and that owing to the fact that our room is adjoining the house where we board, in another tenement, the family are unable to *give mine that attention required by necessity. The only persons now staying with my wife, or that could without much delay be had, are two females, and were her accouchement to take place at night, the delay in procuring proper attendance I fear will be the cause of some disaster. I deem it unnecessary to say more, as my situation is one which every man of family must appreciate.” Accompanying this letter was the following certificate from dr. Bohannan : “I hereby certify that mrs. K.” (the wife of the juror) “is momentarily expected to be confined, and that' her situation is such as.to require the kind attentions of her husband.” This certificate was duly sworn to, as was also the above mentioned letter of the juror. At the same time the following affidavit of another juror was presented to the court: “City of Richmond, to wit: Personally appeared before me L. Carrington, a magistrate in and for the city aforesaid, Lewis Hill, one of the jurors in the case of The Commonwealth v. Fells, and made oath that his health is suffering from confinement, and he apprehends serious consequences will ensue, if longer confined.” The court expressed the opinion that it had power in this state of things, to direct a juror to be withdrawn, and to discharge the rest of the jury; which was accordingly done. The attorney for the commonwealth then moved the court to award a new writ of venire facias, and to impanel a new jury for the trial of the prisoner. This the prisoner opposed, and moved for his discharge, on the ground that the discharge of the jury as aforesaid en titled him thereto. The court, not being advised what judgment to render in the premises, with the consent of the prison adjourned to this court the following questions for novelty and difficulty: 1. *217Whether the court possesses the power and authority to discharge a jury after they have been impanelled and sworn, upon being satisfied there is sufficient reason to believe that there is no probability *of the jury agreeing in a verdict ? 2. Whether, if the court does not in general possess the power before spoken of, it is right and proper to discharge the prisoner, taking into consideration the facts and circumstances which existed in this case, as disclosed by the record?

The cause was argued here by the attorney general for the commonwealth, and R. G. Scott for the prisoner.

*

Criminal Law — Power of Court to Discharge Jury.— As bolding that the court may properly discharge the j ury in a case of felony, whenever a necessity for so doing exists, the principal case is cited in Williams v. Com., 2 Gratt. 570; State v. Davis, 31 W. Va. 395, 7 S. E. Rep. 26. But, in Williams v. Com., 2 Gratt. 570, Judo® Christian, delivering the opinion of the court, said: “While we approve that decision *(i. e.*the decision in the principal case), we think that mere inability on the part of the jury to agree, presents no such case of necessity. We think, moreover. the exercise of such a power or discretion ought not to be allowed ; that the accused is entitled to be tried by the jury he has selected in the first instance, unless there be some imperious necessity for their discharge; in which event another jury may properly be sworn to try him. The practice in Virginia has been, in the case of a hung jury in a trial for felony, either to adjourn the Court at the end of the term, taking no notice of the jury: in which case they are necessarily discharged by operation of law, or else to call the jury in and discharge them simultaneously with the final adjournment of the Court; which practices this Court approve and think right.”

See further, on this subject, *foot-note*to Williams v. Com., 2 Gratt. 567; monographic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733; Va. Code 1887, § 4026.

Same — Improper Discharge of Jury — Effect.—In State v. Davis, 31 W. Va. 392, 7 S. E. Rep. 26, it is said, “It is by all the authorities agreed that, when a prisoner is once put upon his trial for a crime before a jury, he is entitled to a verdict from that jury, unless there exists a manifest necessity for its discharge before the verdict is rendered. Many of the authorities hold that as soon as the jury have charge of his case, upon a valid indictment, before a competent court, he is in jeopardy, and stands upon his deliverance; and, if the j ury is improperly and illegally discharged, such improper discharge of the j ury is equivalent to the acquittal of the prisoner, and the prisoner is therefore entitled to his discharge from further prosecution. McCreary v. Com., 29 Pa. St. 323 ; *Com. v.*Fells, 9 *Leigh*613; Williams v. Com., 2 Gratt. 568; State v. Garrigues, 1 Hayw. (N. Car.) 241; Spier’s Case, 1 Dev. 491; State v. McGimsey, 80 N. Car. 377; Mahala v. State, 10 Yerg. 532; Ned v. State, 7 Port (Ala.) 188; People v. Webb, 38 Cal. 467; People v. Hunckeler, 48 Cal. 331; State v. Walker, 26 Ind. 346; Shaffer v. State, 27 Ind. 131; Com. v. Cook, 6 Serg. & R. 577.” See also, mono-graphic *note*on “Juries" appended to Chahoon v. Com., 20 Gratt. 733.

UPSHUR, J.,

delivered the opinion of the courlt. — This court is desirous at all times to decline the expression of any opinion upon points not necessarily involved in the particular case before it. The first question, which presents the case of a mere inability of the jury to agree in a verdict, is of this description. If the course pursued by the court below can derive its justification from the facts and circumstances which existed in the case as disclosed by the record, it is unnecessary and might be mischievous to enquire what would be the power of the court under a condition of things much less strong and distinguishing. The response which we shall give to the second question must of necessity dispose of the case ; and to this question we shall therefore confine ourselves.

It has long been well settled, both here and in England, that in cases of misdemeanour the court has power to discharge the jury and to put the accused upon' his trial before a new jury ; but it has not yet been decided in Virginia that the same power exists in trials for felony. The question, however, has frequently arisen in the courts of some of our sister states, and in the supreme court of the U. States, where it has been examined and discussed with so much learning and ability as to render unnecessary an elaborate examination of it here. In The People v. Olcott, 2 Johns. Cas. 301, judge Kent enters into a full and very learned review of all the *cases upon the subject. He shews very clearly that “the position generally denying the power of the court to discharge a jury sworn and charged in a criminal case, has originated (probably without further examination or enquiry) from a dictum to be found in the institutes of lord Coke,” (1 Inst. 227 b. 3 Inst. 110,) “and that this dictum rests upon his single authority, without the sanction of any judicial decision. None of the decisions go any further than to prescribe a rule to the discretion of the court in particular cases. On the contrary, there are many authorities admitting and establishing the power of the court to discharge the jury, even in capital cases.” The question again came up before judge Spencer, in The People v. Goodwin, 18 Johns. Rep. 187; 1 Wheeler’s Cas. 470, where the last mentioned case was reviewed and approved. Judge Spencer, upon a full examination of all the authorities, comes to the conclusion, that “although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in cases of extreme and absolute necessity, and that it may be exercised without operating as an acquittal to the defendant; that it extends as well to felonies as misdemeanours,” &c. The same doctrine is still more broadly laid down by the supreme court, in The United States v. Josef Perez, 9 Wheat. 579. That was a capital case ; and judge Story, in delivering the opinion of the court, says: “We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” The same doctrine is laid down in The United States v. Coolidge, 2 Gal. 364 ; The Commonwealth v. Bowden, 9 Mass. Rep. 494, and The Commonwealth v. Clue, 3 Rawle 498. These cases do but affirm the law as it exists at *this day in England. Whatever doubts there may have been in an earlier stage of her criminal jurisprudence, the doctrine is now well settled in Ann Sealbert’s case; Leach’s C. L. 620, in Rex v. Stevenson, Id. 546, and The King v. Edwards, 4 Taunt. 309. These cases all concur in establishing the power of the court to discharge the jury and to put the accused again upon his trial, in any case whatever, whether capital or otherwise.

What circumstances will justify the court in exercising this power, is not, however, so well established. In Ann Sealbert's case, after the jury were sworn, one of them fell down in a fit; in The King v. Stevenson, the prisoner himself became suddenly ill, and incapable of attending to his defence; in The King v. Edwards, one of the jury was taken ill, and became incapable of proceeding in the examination of the cause ; in The People v. Denton, 2 Johns. Cas. 275, The People v. Olcott, and The United States v. Perez, the jury were discharged merely because they were unable to agree in a verdict. It is unnecessary, and indeed would be impossible, to enumerate all the circumstances which would justify the court in exercising this power. One general rule is deducible from all the cases; which is, that the court may discharge the jury whenever a necessity for so doing shall arise : but what facts and circumstances shall be considered as constituting such a necessity, cannot be reduced to any general rule. The power to discharge is a discretionary power, which the court, as in all other cases of judicial discretion, must exercise soundly, according to the circumstances of the case. The object of the law is to obtain a fair and just verdict, and whenever it shall appear to the court that the jury impanelled cannot render such a verdict, it ought to be discharged, and another jury impanelled. This is emphatically the case of necessity contemplated in the authorities we have referred to ; as where the prisoner *became too sick to attend to his defence, or one of the jury was rendered physically unable to discharge his duty. There are other cases of necessity equally strong, one of which probably is, where a juror, from the peculiar condition *218of his mind and feelings, is manifestly dis-. qualified from bestowing on the case that attention and impartial consideration which is necessary to a just verdict. However this may be (and we do not mean to lay down any positive rule upon the subject) we are of opinion that the case before us is one in which the necessity for discharging the jury, contemplated in the authorities, is manifest and strong. The actual sickness of a juror, and his consequent inability to discharge his duty, is admitted on all hands to present such a case of necessity. In the case before us, the juror was not actually sick, but there was every reason to believe that he would become so through longer confinement. Was the court bound to wait till the case actually occurred? We think not. It is true, that the mere probability that confinement to the jury room would produce ill effects on the health of some member of the jury, would not in all cases justify the court in discharging the jury. It may be, that they will agree at once, or at all events in so short a time as not to render their confinement injurious to ahy one of them. But when they have been a long time in consultation ; when they have frequently compared opinions, and found that they could not agree ; when their confinement has already produced serious effects upon the health of one or more of them ; when longer confinement would probably produce worse consequences; and when, from all the circumstances of the case, it is manifest that they cannot agree through any free action of their own minds, the attempt to compel a verdict by longer confinement would be equally opposed to humanity and the sound principles of law and justice. A necessity not less strong was presented by the *situation of the wife of another juror. If the object of the trial be, as it undoubtedly is, to obtain a fair, just and impartial verdict, there, can be but little prospect of such a result from the constrained and reluctant action of minds wholly absorbed in the deep and peculiar interest of their domestic relations. Nor can we perceive any difference between the case of necessity which arises when the longer confinement of the jury is likely to produce serious effects upon the health of one of their own body, and that which arises when the health of any other person would be equally endangered from the same cause.

It has been supposed that the conclusion to which we have arrived is forbidden by that clause of'the Sth article of the amendments of the constitution, which provides that no person shall be subject to be twice put in jeopardy of life or limb for the same offence. To this we reply, that this provision of the constitution is no more than the adoption, in that instrument, of a well established principle of the common law ; a principle which was present to the minds of the english judges when they decided various cases before cited. Their judgments were not affected by that principle, for the reason that it was not involved in the cases. The prisoner cannot be said to be twice put in jeopardy, unless he has been already once tried ; that is, unless a jury has once passed upon his case. If this be not'so, the prisoner would be entitled to his discharge when a juror, after being sworn, and before verdict, dies, or becomes incurably deranged, or escapes from his fellows and does not return; or where the term of the court expires by operation of law, before verdict. In all these cases, and others of like kind, it is not doubted that a new jury may be impanelled ; and yet this could not be done, if the clause of the constitution above cited should receive the construction which is contended for: *Upon the whole, we are of opinion, that in capital cases, and consequently in all other criminal cases, it is in the power of the court, for good cause, to discharge the jury, and to put the prisoner upon his-,trial before a new jury. It is, however, a power which cannot be too cautiously exercised. The prisoner is entitled to be tried by the jury elected, tried and sworn in the first instance ; and to deprive him of that right, except in a case of obvious and strong necessity and propriety, might work great injustice and oppression to him, and endanger the pure administration of criminal justice.

A majority of the court is of opinion, and doth advise, that in the case before us, it would not have been right or proper in the court below to discharg-e the prisoner, taking into consideration the facts and circumstances which existed in the case, as disclosed by the record.