#### Wyatt *v.*The State, in Error.

INDICTMENT for larceny. Plea, not guilty. When the testimony was closed, the prisoner called upon the Court to instruct the jury to find a verdict in his favour, should they be of opinion that the offence proved amounted to burglary. This instruction was refused. The jury having retired, and not being able to agree, separated without leave of the Court. Upon this, the prisoner moved for a discharge. The Court overruled bis motion; discharged the jury against his consent; and awarded a. *venire facias de novo,*returnable instan ter. The prisoner was then tried and convicted.

*-Held,*that there was no error in the proceedings (1).

(1)

 The common law doctrine was formerly said *to*be, that a Jury oseé sworn and .charged, in any criminal case, could not be discharged without giving a verdict. 3 Co. Inst. 110. And it was contended, that this doctrine is recognized by the following clause in the constitution of the *United Stales:*“Nor shall any person be subject, for the same offence, to be twice put inject pardy of life or limb.” Amend. Cons. *U. S.*art. 5. It is now considered, however, that the common law is, *that no one shall be twice tried for the same offence ;*and that this is the principle *recognized by the*American constitution.

This subject has been recently investigated in the Supreme Courts of New-Y*ork*and the *United States;*and it is by both decided, that if the jury cannot agree, they may he discharged by the Court — even in a capital case — without the prisoner’s consent; and that another jury may be afterwards impannelled to try the cause. *The People*v. Goodwin, 18 Johns. R. *187.*— The *United States*v. Peres, 9 Wheat. 579.

If the term limited by law be about to expire,’ and there be no probability of the jury’s agreeing before the Court must adjourn, they may be discharged* and the prisoner be subsequently tried. *The People*v. Goodwin, supra. So if, during the trial, a juror or the prisoner be taken suddenly ill, and be unable to attend, *the jury*may *be*discharged, and a new trial ordered. Thus, in a, capital case, where a jui’or fell down in a fit and was carried out of Court, the jury were discharged against the prisoner^ consent, though the evidence for the prosecution had been nearly gone through. The jurors’ names were again called, and a twelfth was put into the box. They were all sworn de novo, the prisoner having his right of challenge. The witnesses were also sworn anew. The prisoner Was convicted. Afterwards, in the Exchequer Chamber, the judges, eleven being present, were unanimously of opinion that the proceedings were correct, *flex v.*Edwards, 3 Camp. 207. There is, also, the following case: An indictment for an assault, with intent to- commit a rape. The examination of the prosecutrix Wás-nearly concluded, when the prisoner fainted away, and was assisted out of Court.- The prisoner’s counsel were willing that the trial should proceed; but the Court, considering that without the prisoner’s consent the case could not go on in his absence, discharged the jury. Afterwards, during the same term, the *prisoner being*sufficiently recovered, the jury and witnesses were re-sworn, the trial proceeded as in other cases, and the prisoner was Convicted. *Rex*v. Streek, 2 Carr. & Payne, 413.

It has been frequently held, on indictments for misdemeanors, thatifthe Verdict be so imperfect that no judgment can be given on it, the Court may award a *venire facias de novo.*Vide 1 Chitt. C. L. *646.*— The *People*v. *Olcott,*2 Johns. Cas. *301.*— The *United States*v. Watkins, Circuit Court, Dist. Col. *July*27, 1829. *Qucere-,*whether this is the law in all criminal eases.