Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1838-07-26

frequently arisen IN the courts Of Oi sister
States, aud in tho Supreme Court Of the u. Statss,s
where IL has been examined aud discussed with 90
much learning and ability to render unnecessary
an elaborate examination Of here In The People
" Olcou, Johns. Gas. 3Ol, Judge Kent enters into
ln aud very learned review OF all the cases upon
tie subject. He shows very clearly thai :" The posi-
ton generally denying the power Of the court to-
discharge n jury sworn and charged in criminal
case, has originated probably without further cx-
animation or cuqniry) from dtctom TO be found ia
tic Institutes OF Lord Coke" q Inst. 227, b. o,
Inst ll0,) and that this dictnl rests upon his sin
elo authority, without the sanction Of any judicial
decision None Of the decisions 60 any further than
to prescribe rule to The discretion of the court,
in particular cases. On the contrary there are
many authorities admitting aud establishing the pow
81 Of The court TO discharge the jury even in capital
cases The question again came up before Jgdgs
Spencer, III The People v. Goodwin, Is Johns Rep.
1872, Whcolet's Cas- AGO. where tho last mention
cd sase was reviewed and approved Judge Spens
cer, upon full examination oi all the authorities,
CONES tp tho conclusion, that although the power
of Ills charging in,y is delicate and highly mpor
tam trust yet that 1t does exist In eases OF extreme
aud absolute necessity, aud that il may be exercised:
"lihon, operating rs an acqnItIal 10 the defendant,
hiatt cxtend rs well 10 telonics msdemcanors,"
Ne. The same doctrine is still more broadly laid
down by the Supreme Court in The United Satss
Y. Joseph Perez Wheat $40. That was a capital
case aud judge Story in delivering the opinion Of
the court, says " We think that in all cases Of
with the authority to discharge jury from giving
any verdict, whenever, in heir opinion, taking xii
tho circumstances into consideration, there 10 u
manifest necessity for the aet, or tho ends off public
Justice would otherwise be defeated" The SANS
doctrine Is laid down in The United States v. Cool.
idge, Gal 36i, and " The Commonwealth '.
Clue, ltNlG 1913, These eases do but affirm thu
law rs 1t exists Al this day in England. Whatever
doubts there may have been In an earlier Stage OF
her criminal Jurisprudence, the doctrine IL we'll
cltIpd Ann hnalbeitg I.pnru'a G. l.. 900.
Rex v. Stevenson, Id. $40, aud The King v. Ed
wards, 1aunt. 300. These cases all concur in Ca
iablshing the power Of the court charge tho
jury aud 10 put the accused again upon his trial. ~
any ease whatever, whether capital or otherwise
What circumstances will Justify the court in exer-
clsins this power, isnot however, well establish
ed In Ann Seabeft's case, after the jury wers
sworn, one OF them foil down in fit in Ths
King V. Stevenson, the prisoner himself became
suddenly Ill., aud incapable Of attending TO his do
lenee IN The King Y. Edwards, one Of the jury was
taken III, and became incapable OF proceeding IN Tho
examina OF the cnuse in The People " Den
ton, Johns. Cas-, 275. The People v. Olcou and
TIM lnited States .Prrer, the jury discharged
merely because they were unable TO agree in a YER.
Dict 1t Is unnecessary, aud indeed would be nri
possible 10 cuumerate all the circumstances which
would Justify the court IN exercising this power
One general rule is leducibc from all the cases.
" hieh IA, that the court may discharge the Jury.
whenever necessity for 80 doing shall arise; bur
what facts aud circumstances shah be considered
constituting such necessity, cannot be reduced to
any general rule. Tho power to discharge is dis
power, which the court - IN NIL other
cases ol Judicial discretion, must exercise soundy.
according 10 the circumstances of tho case. The OBJ
jet OF tie Law Is tn obtain ia aud ust verdict, anu
whenever II sha appear TO tho court that tho jury
tnpannellod cannot render such verdict ii ought
to be discharged, and another jury impannelled.-
This Is cmphacally the case II necessity coDtempfa-
ted in the authorities we have referred to; asmlcre
the prisoner became too sick 10 attend TO his de-
ieuee OF Que OF tile jury was rendered physically ~.
able To discharge his duty There are other casos Of
necessity equally strong, one OF Which probably 10,
where Juror, from the peculiar condition oil his .
mind aud feelings, is manesy disqualified from be-
slowing the that attention and impartial corr
sideratIon which Is necessary 10 lns' resuict.--
However .4.5 INV nc, tand we do not mcanio lay
down any positive rule upon the subject) We OF
opinion that the case before us Is one IN which the
Necessity lir drseharglng the Jury, contemplated III
the authorizes Is manifest and strong The actual
sickness Of Juror, and hls consequent inability 10
discharge Ills duty, IS admitted on all hands 10 pre-
sent such case o necessity. In the before u.s.,
the Juror was not actually SICK, but there was every
reason believe that he would become so through
long cuniine nlent. Was the court bOurd 10 wait
al lie case actually occurred We think not
Il is rue that the mere probability that confinement
10 The fy-room would produce i'll effects on the
health OF some member OF the Jury would not in alt
ca rs justify the court in dseharging the jury. II
may be, that they will agree NJ once, or al all evcns
III short time not TO render their confino-
,nent injurious 10 any one OF them. But when they
have been long Time in consultation when they
have Lequently compared opinions, and found that
they could not agree; when Their confinement has
ala eady produced serious effects upon OF moro
OF them; when longer couiin sment would probably
produce worse consequences; and when from all
the circumstances OF the case, j, IS manifest that they
cannot agree through any free acton OF their own
minds the attempt to coupe i verdict BY longer
confinement, would be equally opposed TO humanity
and the sound principles of Law and justice. ne
ccssity not less sfnn was presented by the situaion
of the wife Of another Juror II the object OF thG
trial be- rs it undoubtedly is, to obtain fair, JUST
and impartial verdict, there can be but l:ltle pros
pect Of such result from the constrained and tcuc-
tant action ofmuds wholly absorbed IN the deep and
peculiar interest OF their domestic relations. Nor
can NC perceive any difference between the case or
ne ccssity which arises when the longer confinement
of the jury likely to produce serious etects upon
the health OF one of their own body, and"that whicn
arises when the health OF any other person wouid
be equally endangered from tic same cause.
1t has been supposed that the conclusion to which
we have arrived is forbidden by that clause Of the
5th article of the amendments Of the Constitution,
which provides that no person shall be subject tobs
twice pat in jeopardy Of life OF limb for the same OF.
fence. Tothis reply, that this provision Of the
Constitution is than the adoPtion ~ tlae
instrument, OF a we'll established principle ofth
common law; a principle, which was present to the
minds of the English gd .es, when they decided th6
various cases before cited. Their judgments were nor
atie ctod by that principle, for the reason that Wy
not involved IN the cases. The prisoner cannot %
said to be twice pat in jeopardy unless he has been
already once tried that is, unless jury has once
passed upon his case. this be not the prisos