Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-01-26

placed In jeopardy twice for the same
oiienRe, but IL told by the courts Of his
state and county that this great hull
Wark Of libevty rests simply In the dis
erection Of the trial Judge, nom whose
rulings, though he be by such rul-
ings deprived of this constitutional
safeguard, there Is no appeal. To such
a doctrine we can never subscribe.
We cannot leave this subject with
out inserting the following extract
rom the opinion OF O. J. Rofiin, in
the Slate Va. Slaughter, . Dew. and
Bat, l62: II am delighted to pro-
nounce our unanimous opinion,
founded upon very deliberate consid-
Grafton, tat the prisoner cannot be
tried again, but il entitled TO his dis
charge, In the same manner as II he
had been acquitted by a Jury. In the
case OF the United States vs.. Perez, 8
Wheaton, $40, besides Others In the
state courts OF this country, the power
OF the court, in It's discretion to dis.
charge the jury, is certainly recognized
IN its greatest extent, and IL was upon
the authority Of these cnses zeAlously
commended for by the attorney. general,
In this case; but we are all of the opin.
ION that there Is no such discretionary
power in 3 case Of felony known to the
common law OF England Ia it's ancient
purity, nor as administered In tia more
modern times ofindependentj judiciary,
ana that nothing short of an apparent
Migrant and uncontrolaDle necessity
would justify such q discharge, aud
authorize q second trial Although
the doctrine Of this discretion has been
thus promulgated by some OF tho
American courts, 1t Is remarkable that
not single instance OF its exercise or
assertion can be found in the Eugliah
books since a period was put to an
arbitrary prerogative aud judicial
servility by the expulsion Of N
Stu irts. Since the revolution OF 1850
q jury has not been discharged In that
country, except upon an absolute dis
ability OF the prisoner to conduct his
defense; as IL he becomes insane OF
suddenly Ill during the trial, or from
the inability Of the jury from any
like causes to proceed with the trial, OF
other similar physical neCess ty and
dispensation OF Providence, except IL
be ON theside OF mercy, for the benefit,
and at the request, or at least, by the
consent OF the prisoner, as In I&inlock'f
CtSei FOeAeIt 10 ~
Believing that this court can revise
the action of the court below in dis.
| charging the jury, over the objections
of the defendant, we will proceed u
briefly mention the facts upon which
the court below acted in this matter:
The jury retired to consider OF theil
verdict, After being out about ont
hour and half, they returned stating
that they could not agree. The cour
intimated that he was willing TO dis
charge the jury, but the defendant ob
| jected. they retired again, and afle
being out about enc hour, returned, re
peating that il wasimpOssible for then
to agree, whereupon they were dis
charged by the court over the objec
tions of the defendant.
The code will not permit the jury b
be discharged over the objections o
the defendant, unless they nave beeI
kept together for such time as to rem
der II altogether improbable that Mel
can agree The jury were kept 10
gether two hours AMI half Is suel
length of time sufficient TO render
altogether improbable that the jar
can agree This question, propounde
10 tine practitioner, would yer
promptly be answered In the negative
Submit it to any person ut all az
quainted with trials by jury, and Ia
same answer would be given. Bui
IL insisted by the state that IL was I'M
possible for them to agree The cod
requires them to be kept together sue
time as will render Is altogether in
probable that they can agree 1t mus
be ALTOGETHER improbable that The
can agree The prob abilities must a
be against the power team, not WiH {
sgree. From the time in this case
two hours and half--is it aliogethe
improbable that the jury could hav
agreed Most certainly the questio
should, and would, by all rtfiectin
minds, be answered in the negative
How frequently Is 1t the case tina
juries state that there Is no possibilit
of their agreeing, and afterwards, Ia
comparatively short time, do agree
, This frequently occurs In all court
and by the best OF juries And ju
} here we would observe that II juri'
, were taught that they would be BeI
} together until there is no probahilit
but that they could agree, mistria
would be rare indeed.
8 But the attorneys for the state insi
; that we must not only look to II
time, but TO all the surrounding ci
=; cumstances in passing on the questiC
as TO whether they have been Kept I
gether such time as will render II alt
1 gether improbable that they can aRre
8 and refer us to the following explain
ton of the learned Judge below: "Tl
+ court held that the jury had been out
+ reasonable time, and was satisfied fro
+ thtiystatements that theyhad al hone
e difference of opinion, and that the ca
, was one upon which jurors might We
! reasonably differ in opinion, as Il
8 case had not, In the courts Opinio
o been fully developed on either side,
Q as full as IL might be, and that the e'
dence adduced WIS such that mig
g reasonably lead 10 different concl
e si0ns BesiCes, some Of tbe juror ha
r ing been kept out in case the night I
g fore on another case, the court did u
9 feel disposed TO compel them 70 be Ike
= over another night. when the court |
d lieved their disagreement was In GO
, faith and fuchauupabie ~