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


sharges IN like manner, in the words used By the Lee
geaure in the 10th section, that the gaming per-
Peeated in g house of entertainment and il would
seen necessarily to be bronght by the Legislative deni
uon u tavern, which is considered a public place,
wilhln the scope of The fifth Section as was The case
Horham vs.. Commonwealth.
Whatever complaint may be made of the vagueness Of
the expression Every house of entertainment and
"' eSrnt WHEN That expression may be carried, it
was July competent TO the Legislative authority 10
adopt those terms in the nidest cons,rpc,on and if
such appeared TO lie the design of the LEGISLATURE the
Courts wonld be bound TO conio,u to il.
There is no occasion, however Cor the ,,nrsbsnsion
that the words 81 house Of enlertatnent' can be liza
BILE to any dangerous nconvenenL latitude of con.
strucaon. house of private en,erta,ment' is an
expression frequently used in The OF asmbly and
though The word pirate is used yet for many ,r poses
such houses are regarded 40 public. The NAMING
which the Legislature attaches TO these terms of des,p.
ton seems not liable to msconslruction. Nor does ne
expression seem more liable to misconstruclon wheI
the word pricatc dropped and the house Of entertain
ment is declared TO be tavern.
1t is objected in this case, that the defendant having
been acquitted upon the first in the indictment,
which charged the gaming 10 have been committed Dat
the house of John Nicely, the same being then and there
apace of public resort, it is apparent that the house
OF entertainment where the defendant under The second
count, convicted Of playing, could have been
public place. This objection assumes, that all the often
ces charged in the indictment must necessarily have
been the same, and that evidence offered hut of
one and the same offence. This, the Court thinks, Is
contrary to the amendment of the law by which each
offence in each count Of the indictment is 10 be regarded
as separate, distinct offence, least until ii be shewn
that there only offence. There is nothing in
this record 10 show that that the
The court IS Of opinion, that there is in the
proceedings and therefore refuses The writ Of pray
ed for.
Communicable vs. Sidney Fels. Adjourned case from
the Circuit Superior Court of Law and Chancery for the
county OF Hcnrico and city Of RichmO, d.
The cause was argued here by the Attorney. General
for the Commonwealth and Robert G. Scott for the de.
fendant
The facts of the fully stated in the opinion Of
the General Court, which delivered by
tpshu, j. The prisoner who is free negro, was in
dcled for assault white man, with intent to muir.
der him; on offence punishable with death. The jury
mpannelIed to try him, having heard the evidence,
tired TO consider thereof and afterwards returned into
court and declared that they could not agree verdict
They were nd ourned over in the usual manner, until
the next day. and having The again committed TO
them, again returned into court after time, and de-
cared that they could not agree. They were again ad
iourned before and from dav day for nine days
On the 9Th day. the jury being still unable to agree,
Of the Jurors addressed 10 the and counsel engaged
in the case letter in the following words: Richmond,
25,h May, 1898. To the Hon Judge p N .NIchoias,
and the counsel in the Of the Commonwealth VS..
FeNs Gentlemen: | herewith send you certificate
from Dr. BOhdnnan and in addition TO that, would state
that am boarding with my family, and that owing 10
board in another tenement the family are unable 10 give
mine that attention required BY necessity The only per-
sons now staying with my wife, or that could without
much delay be had two females, and were her
couchenen 10 take place at night the delay in procur
ing proper attendance fear will be the cause of some
disaster. deem it unnecessary TO say more as my ST.
tualon is one which every man Of family must oppec
ate. Accompanying this letter was the following GER.
tcac from DR.. BOhannan: 81 hereby certify that Mrs.
n (he wife of the Juror sis nomeni!y expected 10 be
confined n such q q
kind attentions Of her husband" This certificate
duly sworn TO- also the above mentioned letter Of
the Juror. AT the same time the following affidavit Of
another juror presented to the "City of Rich
mond to wit Personally appeared before L. CARING
ton, magistrate in and for the city aforesaid, Leles
HILL one Of the jurors in the case Of the Commonwealth
Fstis 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 juror 10 be Withdrawn and 10 discharge the rest
Of the jury; which was accordingly done. The Attorney
for the Commonwealth then moved the court 10 award
writ Of renre taeias, and to impanne new jury
for the trial Of the prisoner This the prisoner opposed
and moved for his discharge, the ground that the dis
charge Of the jury aforesaid entitled him thereto The
court being advised what judgment render in the
premises with the consent of the prisoner adjourned TO
this court the following questions for novelty and diff
Guilty: l. Whether the court possesses the power and
authority 10 discharge jury after they have been impan
nelled and sworn upon being satisfied there is Sufficient
believe that there is probability Of the jury
agreeing in verdict; g Whether, if the court does
in general possess the power before spoken of is
right and proper TO discharge the prisoner, taking into
the facts and circumstances which exist
ed in this case, as disclosed by the record?
This court is DESTROYS al all times TO decline the eH-
preston Of any opinion upon points not necessarily in
volyed in the particular before it. The first ques
tion which presents the of inability of the
Jury TO agree in a verdict is Of this description. II the
course pursued by the court below derive lis jusli
cation from the facts and circumstances which existed in
the disclosed by the record it is unnecessary and
be mischevous TO enquire what would be the pow
err Of the under condition of things much less
strong and distinguishing. The response which shall
give the second question must Of necessity dispose OF
the case and 10 this question shall therefore conne
ourselves.
1t haa long been well settled, both here and in Eng.
land that in Of the court has power
discharge the jury and 10 put The accused upon his
trial before Jury but il has not yet been decided
in rgina that the power exists in trials for teo-
n.y. The question, however, has frequently arisen IN
the courts Of Of sister States and IN the Su
peme Court Of the IT, STATES, where it has been exa'
mined and discussed with much learning and ability
as TO render unnecessary elaborate examination
of here. In Tile People O'cou, Johns. Cas-. 3O
Judge Kent enters into fall and very learned review Of
all the upon the subject He shows very clearly That
"the position generally denying the power OF the court
10 discharge Jury and charged in criminal case,
has originated probably without further examination or
enonry) from dictum TO be found in the Institutes oil
Lord Coke" Il Inst 227, b.; Inst no. land that This
dctun upon his single authority, without the sane
ton of any Judicial decision None of The decisions 60
any further than prescribe 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 " Goodcin l8 Johns Rep Isl, heeler s
Cas- 40, where the last mentioned case was reviewed
and approved Judge Spcncer upon foil examination
of oil the authorities comes to the conclusion, that cal
though the power of dscharging jury isa delicate and
highly important rust yet that it does exist in cases OF
extreme and absolute necessity, and tina, may be e1
ercised without operating acqual to the defend
anti that it extends we'll to Geonies msdcmeanors,
&c The same doctrine is still more broadly laid down
nv the Supreme Court in The United States Joseph
Perer, Wheat 579 That capital case; and Judge