The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1893-04-11

Judge Gordon. OF Philadelphia. ad-
heres to thu old English law. that q
Court has no power in q capital case to
discharge Jury until 1t arrives at
verdict. This he showed In the recent
case. Of the Stats vs. DR.. William B.
Wertz. who was on trial on an indict.
mont charging him. with the murder
OF Thomas P. Gallagher, last january.
The jury went cut about Q 80 o'clock
on Monday night Of Inst week. and on
Thursday morning sent a note to the
Court, stating that IL was impossible
to agree, and asking to be discharged.
Judge Gordon had the Jury brought
into court. when he addressed them.
The bill charges the offence OF muir
der, nnu US 1t charges that crime to
which In one degree the penalty IL
death, the defendant, when he Ia put
on trial on that bill of indictment, ID
from that moment in jeopardy OF life
aud limb. and under our constitution
he canrot twice be put In that posi-
ton for the same offence, and there.
foro there can be no retrial OF this
Case.
''ln this respect the offence Of murder
/ s,exceptionable, for this does not ap-
! ply to other crimes. and therefore it is
obligatory upon the jury to agree
upon verdict. / have No right to
discharge you. / have no right to
put this case In such o position that
the defendant cannot again DO tried
for this offence. have explained to
you at this length why have not the
power 10 discharge you. l do not
moan to say that have not tho phy.
steal power, but know / would do q
wrong and would defeat the ends OF
/ justice. For ell other crimes there
| may be repeated retriais, but for this
j ono verdict must DO reached"
Tho Jury again retired and inside Of
six hours rendered verdict of guilty
of manslaughter.
The views of Judge Gordon are the
sumo as those OF tho late Chief Justice
Comegys and are In effect. that under
no circumstances can man DO legally
tried for O capital offence the second
time.
A notable Instance occurred In this
county, some IL years ago, In the case
Of the State VS.. Morris Carberry, who
was tried on an indictment charging
him with wllfuliy numbering colored
man named Adams, ut the Old Forty
Rolling Mill. The Hon. George Gray
was attorney general. and the princi
pal attorney for tho defonse was the
present Chief Justice. Charles u. Lore
The trial was commenced on @
Monday morning ut tho November
, term. and all the evidence had beer
submitted and the case given to the
Jury on tho ensuing Friday, whom they
retired. Nothing wns heard from then
until Saturday morning. when they
/ sent word to tho Court that they coult
!. not agree. Chief Justice Comogys re
turned word that thoy must agree
. About noon the Chief Justice, VIII
. was feeling quite unwcll, left tho bencl
and started for his home in Dover
leaving Associate Judges Wootten an
Houston on the bench, both OF whom
0 were also anxious to get home.
A Shortly after o'clock the jury agal
!, sent word that they could not agret
= when Judge Wotten had them brough
j. in and after questioning them, dis
charged them.
The next week, Mr.. Lore moved tina
the prisoner be discharged. On tn
ground that es his life and limb ha
Q been placed In jeopardy once, h
{ could not be tried again for tho sam
r olIense. The argument was long. bu
highly interesting, and Mr.. Lore cite
g English authorities for 200 years bach
}. showing that In England, jury tina
q could not agree in capital case up
q the time the court adjourned, woul
: be placed in carts and hauled fror
% ono circuit to anotheR Until they di
IL agree.
"a Mr.. Lore also showed that the Cou
a for the purpose OF compelling a jul
a to agree would Keep them wlthol
food or drink except water until as u
n. old records show, some OF them die
:, and that when such was tho case, u
IN prisoner was discharged.
ut When the decision OF the court W
ut rendered, Chief Justice Comegys 81
ar tanned Mr.. Lore, and declared that &
prisoner was entitled to his dischar,
no but as Judges Wootten and Houst'
he dissented, Carberry was tried secol
liz time. declared guilty OF manslaught
-, ami sentenced to five years imprisC
IA ment which lie served in New Casi
Is jail.