Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1838-07-20


ing,, is manfestly disqualified from besowng the
case that attention and impartial consideration which is
necessary 10 just verdict. However this may be, (and
we do not mean 10 lay down any positive rule upon the
subect We are Of opinion, that the before
In which the necessity for dschargng the jury contem
plated IN the authorities is manifest aud strong The
actual sickness of juror and his consequent inability TO
discharge his duty, is admitted all hands 10 present
such case OF necessity In the before US, the lu
Tor was not actually SICK but there every 10
believe that he would become through longer confne
ment Was The court bound wait I'LL the actually
occurred: We think not IL is true that The mere pro-
oanhtY mat confinement TO the jury would pro.
ouce III effects on the health of member Of the jury
would not IN all Justify the court in dschargng the
jury may be, that they will agree once at all
events IN so short time not render their confne
me"' injurious oany one OF them. But when they have
oeen long Time IN consultation; when they have fire.
qnenty compared opinions and found that they could
not agree when their confinement has already produced
serious effects upon the health of of lhem
when longer confinement would probably produce
worse consequences; and when from all the ccum.
sces OF the case, manifest that they canno, agree
'oGh any free action Of their minds, the attempt
W oImoel verdict by longer confinement, would be
49, ~?posed1o humanity and the sound prncl piles of
law una J"lice. necessity not less strong was pre-
srnleo ny th situation of the wife Of another uror II
''c "'e VI u. trial be, as it undoubtedly is 10 obtain
'a' JUST anu 1aral verdict, there can be but little
P'Pet" soch T''ult from the constrained and reluc
tat acilon OF minds Wholly absorbed in the deep and ne
cuar interest Of their tome,,ic relations. Nor c,n ye
P'cehe any ahefence between the of necessity
winch arises when the longe. confinement of The Jury is
hy 10 produce serious effects upon the health Of
OF he own body and that which arises hen the health
OF any other person would be equally endangered from
the same cause.
II iss been supposed that the conclusion to which we
nave u'Vea Is ofnodfn by that clause Of the 9th
tcIe oi The amendme Of The Constitution which
Vides 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 uf the Constitution is no
more Than The adoption, IN that instrument of well
blished principle of the common law; princple which
was present 10 the minds Of the English Judges when
they decided the various before cited Their Judy
ments were moi affected by that principle for the rea
son lha II was moi involved in the The prisoner
cannot be said 10 be twice put eopa dy unless he has
been already once ritd that s unless Jury hos once
passed upon his If this be So the prisoner
would be entitled to his discharge when a juror, after
being sworn, and before verdict dies becomes
raby derangcd escapesom his fellows and does not
return or where the term of the expires by opera
ton OF law before verdict In all these cases and others
OF like kind II is not doubted that new Jury may he
impanneed; and yet this could be done if The clause
OF The Constitution shove cited should receive the con.
sruction which is commended for
Upon the whole, are of opinion that in capal
cases. and consequently in all other criminal cases it is
IN the power Of the CONT for good cause 10 discharge
the jury. and to pu: The prisoner upon his trial before
ne" jury IL ls, however, power which cannot be too
cautiously exercised The prisoner entitled be tried
by the jury elected tired and in the FIRST instance
and to deprive him olhat right, except IN case of OBJ
vons and strong necessity and propriey, might work
great injustice and oppression 10 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 u.s. IT would not have been right
or proper in the courtbeow TO discharge the prisoner
taking into consdr the facts and circumstance
which existed IN Ills cue, disclosed by the record
Communicable " Thomas }. Coe
The defendant vas indicted in the Circuit Superior
Court OF Law and thancery for Wood county, for sell
ing ardent spirits u retail, "to be drunk the place
where sold, withoh having license therefor AT the
trial the Commonwealth adduced evidence that the de-
fendant had sold ahisSPy by retail the place men,
toned in the INDICTMENT and within Twelve months pre-.
vous 10 the fndIg Of the same; but whether the wills
key sold 10 drunk at the place or TO be carried
away by the purchser, did not appear. The Attorney
for the Commonwealth conended that the words 'o be
drunk at the pIacwhere Sold" might be regarded as
surplusuge, and IL defendant convicted under the Sd
section OF the act 9Th March. 1884 prohibiting the
sale OF ardent sp not to be drunk at in the place
where the ny be sold but the court instructed
the jury, that the 'fendan ought be convicted
under that indctnnt, without proof satisfying their
minds, not only othe selling, but that the spirits
sold to be drunk Inr at the place where the
sold, or in some 10th, arbour or stall appendant or
contiguous thereto TO which opinion and instruction |
OF the court, the Aorney for the Commonwealth ex.
copied The jury End verdict for the defendant, and
the court rendered Jgment OF acqultal.
And now the Arney. General on behalf of the |
Common wealth. Petoned the court for writ of error
TO he Judgment
Fry. delivered opinion of the court.-According
TO I.Bf " tomm0"s'ht, ls;ely decided in this court
the present IS ca'ep which writ of error may be
awarded 10 the Commonwealth. The Attorney Gene.
raj has asked for on; I'D the ENQUIRY is wba, error ,be
record presents:
The Indictment ale5 that the defendant without
having license lbcieh according law, did sell by
retail vine, brandy &cD be drunk at the place where
sold contrary TO The Tor of The s,atue in such case
mace, NC II Is evoen.'y unded the 18th OF the
act passed. hatch Z, !c'1. That the spirits 10 be
drunk al Tie place "hcte So necessary TO constitute
Inc olence Wi'hin lha' seem. But failing 10 prove
thsi'he Attorney Tor me Not.on wealth conended that
the words cescrloIhg l"al paof The offence might be
rejected as sufpiuease, anu tNefendant convicted IN
der the Sd section Of the act aesaid The court h.. |
low decided olhetS'se, aho' "tnk, with good reason.
Without deciding what won be a good indictment
under the Sd section, il is sutnl 10 saw tina, the of
fences described By the Sd and L. sections are wbollv
different Under the 18th sectit an ordinary license
and certificate required; undrhe I'd a reiail NOR
chants license and certificate Utr The 9Th the s,
TITS must be sold be drunk at the of SALE. undrr
the 3d. not to be drunk al such plac. Under tho l7b
the fine is 80 dollars; while that und The 3D. is twice
the tax upon 4 retail merchants llceL IN, Tho time
The offences being thus different, IlJow one TO he
described and the other proved, would Lonrarv 10 IN.
paines principles of justice and oppH ,o The end or
pleudng-that The defendant may ha suficien, no ;
tice of the charge against him, and tina verdict and
Judgment upon may be bar TO any fup proceedino
TO allow it, he mi ght not only be entrap but twice
harassed Suppose, on the ground claimeNy the Com.
monwpaith the jury had found the deienl guilty. &
what Judgment could the court have rendt,;o Mani
testify Judgment for 30 dollars fine, under 18th sec.
ton The record could have warranted NOR Yet e
the verdict would have been founded upon ,encr of
an offence 10 which different penalty Is aa.d And =
should the defendant De again cnafgea WIN latter d
offence lie could not ii CONTRARY TO the u terms :
Of the record 10 be Inc same LOT winch ne ready
suffered
We are all of opinion to deny the writ
.