People, 18 Johns. 187 (N.Y.)

Spencer, Ch. J.

delivered the opinion of the Court. A motion has been made to discharge the defendant, on the ground that it appears by the return to the certiorari, that he has been once tried, and therefore cannot legally be tried again. He was indicted in the Sessions in New-Yorlc for manslaughter ; the trial continued for five days, and the jury, after having received the charge of the Court, retired to con. sider of their verdict; were kept together 17 hours, and declaring there was no probability of their agreeing on their verdict, were discharged after 11 o’clock at night, on the last day in which the Court could sit. It appears that the jury had, in the mean time, between their receiving the charge of the Court, and their discharge, come into Court, and on being asked if they had agreed on their verdict, answered, through their foreman, that they had agreed, and that they found the prisoner guilty, but .recommended him to mercy; but on being polled, the third juror called upon, declared his disagreement to the verdict. These are all the facts material be noticed in considering the present motion.

The defendant’s counsel rely, principally, on the. 5th article of'the amendments to the Constitution of the United Stales, which contains this provision : “ Nor shall any person be subject for the same offence, to be twice put in jeopardy*

of life or iimS.” It has been urged by the prisoner’s counsel, that this constitutional provision operates upon state courts proprio vigore. This has been denied bn the other side. I do not consider it material whether this provision he considered as extending to the state tribunals or not; the principle is a sound and fundamental one of the common law, that no man shall be twice put in jeopardy of life or limb for the same offence. I am, however, inclined to the opinion, that the article in question does extend to all judicial tribunals in the United States, whether constituted by the Congress of the United States, or the states individually. The provision is general in its nature, and unrestricted in its terms ; and the sixth article of the constitution declares, that that constitution shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state, to the contrary notwithstanding. These general and comprehensive expressions extend the provisions of the constitution of the United States to every article which is not confined, by the subject matter, to the national government, and is equally applicable to the states. Be this as it may, the principle is undeniable, that no person can be twice put in jeopardy ,of life or limb, for the same offence.

The expression, jeopardy of limb, was used in reference to the nature of the offence, and not to designate the punishment for an offence ; for no such punishment as loss of limb was inflicted by the laws of any of the states, at the adoption of the constitution. Punishment by deprivation of the limbs of the offender, would be abhorrent to the feelings and opinions of the enlightened age in which the constitution was adopted, and it had grown into disuse in England, fora long period antecedently. We must understand the term, “jeopardy of limb,’’ as referring to offences which In former ages were punishable by dismemberment, and as intending to comprise the crimes denominated in the law, felonies. The crime of manslaughter is, undoubtedly, a felony ; and therefore, the prisoner is entitled to the protection afforded by the article of the constitution, whether we regard it as binding upon us by its own force, or as an acknowledged axiom of the common law.

The question then recurs, what is the meaning of the rule ^at no person shall be subject, for the same offence, tobe twice pul in jeopardy of life or limb ? Upon the fullest con-sideraiion which I have been able to bestow on the subject, I am satisfied that it means no more than this : that no ritan shall be tzoice tried for the same offence. Should it be said, that we can scarcely conceive, that a maxim so universally acknowdedged, and so interwoven with our institutions, should need an explicit and solemn recognition in the fundamental principles-of the government of the United States, we have only to recur to the history of that period, and to some other of the amendments, in proof of the assertion, that there existed such a jealousy or extreme caution, on the part of the state governments, as to require an explicit avowal in that instrument, of some of the plainest and best established principles in relation to the rights of the citizens, and the rules of the common law. The first article of the amendments prohibits Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and petition government for a redress of grievances ; the second secures the right of the people to bear arms ; and, indeed, without going into them minutely, nearly all the amendments to that instrument, indicate either great precaution in defining the powers ofthe national government, and the rights of the people and the states, or they evince a jealousy and apprehension that those fundamental rights might be impugned, so as to leave no doubt that in the article under consideration, no new principle was intended to be introduced. The test by which to decide whether a person has been once tried, is perfectly familiar to every lawyer — it can only be by a plea of auterfois acquit, or a plea of auterfois convict. The plea of a former acquittal, Judge Blackstone says, (4 Com. 335.) is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence; and hence (he says) it is allowed as a consequence, that where a man is once fairly found not guilty upon an indictment, or other prosecution, before any court having competent jurisdiction

of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. The plea of a former conviction depends on the same principle, that no man ought twice to be brought in danger for the same crime. To render the plea of a former acquittal a bar, it must be a legal acquittal, by judgment, upon a trial for substantially the same oiiccce, and the verdict of a petit jury. (1 Chitty’s Crim. Law, 372.) In the present case, it is not pretended that the prisoner has been acquitted, unless the discharge of the jury, without having agreed upon their verdict, and without the prisoner's consent, shall amount, in judgment oflaw, to an acquittal. This brings us to the question, whether the Court of Sessions could discharge the jury, under the circumstances of this case. If they could not, then I should be of the opinion, that although there could be no technical plea of auterfois acquit, the same matter might be moved in arrest of judgment; and if so, I can see no objection to the discussion of the question in its present shape, on a motion to discharge the prisoner.

In the case of the People v. Olcott, (2 Johns. Cases, 301) all the authorities then extant upon the power of the Court to discharge a jury in criminal cases, and the consequences of such discharge, were very ably and elaborately examined by Mr. Justice Kent; and it would be an unpardonable waste of time to enter upon a re-examination of them. In that case, the jury, after having remained out from 8 o'clock on Saturday evening, until near two o’clock the next day, and having, in the mean while come into court two or three times for advice, declared there was no prospect of their agreeing in any verdict, and where discharged, without the consent of the prisoner: One of the questions was, whether the discharge of the jury entitled the defendant to be discharged, or whether he could be re-tried ? After examining and commenting on all the authorities, the position of the learned judge was this: “ If the court are satisfied that the jury have made long and unavailing efforts to agree, that they are so far exhausted as to be incapable of further discussion and deliberation, this be-corr. ‘S a case of necessity, and requires an interference.’’ He observed, “ all the authorities admit that when any

juror becomes mentally disabled, by sickness or intoxication, jt js proper to discharge the jury ; and whether the mental inability be produced by sickness, fatigue or incurable prejudice, the application of the principle must be the same.” Again, he observed, ‘‘ every question of this kind must rest with the Court, under all the particular or peculiar circumstances of the case. There is no alternative — either the Court must determine when it is requisite to discharge, or the rule must be inflexible, that after the jury are once sworn, no other jury can, in any Court, be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, that moment a door is opened to the discretion of the Court to judge of that necessity, and to determine what combination of circumstances will create one.” The learned Judge inveighs, with force and eloquence, against the monstrous doctrine of compelling a jury to unanimity, by the pains of hunger and fatigue, so that the verdict is not founded on temperate discussion, but on strength of body. Although the case of the People v. Olcott was a case of misdemeanour, the reasoning is, in my judgment, entirely applicable to cases of felony ; and although the opinion was confined to the case under consideration, a perusal of it will show that it embraces every possible case of a trial for crimes. The opinion was delivered in 1801, and since that time this question has come under consideration in several cases. In the case of the King v. Edwards, (4 Taunt. Rep. 309.) the indictment was for a felony ; and while the prosecutor was giving his evidence, one of the jurors fell down in a fit, and he was pro-’ nounced by a physician, on oath, incapable of proceeding in his duty as a juryman on that day, whereupon the jury was discharged, and a new jury sworn,and the defendant was convicted. The point whether the prisoner could be tried, after the discharge of the jury, without consent, was argued before all the Judges in England, except Mansfield, Chief Justice, and Lawrence, Justice ; all the cases were cited, and the Judges, without hearing the counsel for the crown, said, that it had been decided in so many cases, it was now the settled law of the country, and gave judgment against the prisoner. The same course was adopted, upon nearly the

same state of facts, in Ann Scalbert’s case; (Leach’s C. C. 706.) and in the case of the King v. Stevenson, (Leach’s C. C. 618.) the prisoner fell down in a fit during the trial, and the jury was discharged; and, upon his recovery, he was tried and convicted by another jury. In the case of the United States v. Coolidge, (2 Gallis. Rep. 364.) a witness refusing to be sworn, the trial was suspended during the imprisonment of the witness for the contempt, and Mr. Justice Story held, that the discretion to discharge a jury existed in all cases ; but that it was to be exercised only in very extraordinary and striking circumstances. In the case of the Commonwealth v. Bowden, (9 Mass. Rep. 494.) upon an indictment for highway robbery, the jury, after a full hearing of the cause, .being confined together during part of a day, and a whole night, returned into Court, and informed the Judge, that they had not agreed on a verdict, and it was not probable they ever could agree; whereupon, one of the jurors was withdrawn from the panel, without the defendant’s consent, and the jury were discharged, and during the same term, another jury was impannelledfor his trial, and he was found guilty. On a motion in arrest of judgment, the Court refused the motion, saying, that the ancient strictness of the law upon this subject had very much abated in the English Courts; that it would neither be consistent with the genius of our government or laws, to use compulsory means to effect an agreement among jurors; that the practice of withdrawing a juror, where,,.there existed no prospect of a verdict, bad frequently been adopted in criminal trials ia that Court. ,

Upon full.consideration, I am of opinion, that although the power of discharging a jury is a delicate, and highly important trust, yet, that it does exist in cases of extreme and absolute necessity; and that it may be exercised without operating as an acquittal of the defendant; that it extends as well to felonies as misdemeanours; and that it exists, and may discreetly be exercised in cases where the jury, from the length of time they have been considering a cause, and their inability to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion. And, in the present

case, considering the great length of time the jury had been out, that the period for which the Court could legally sit, was nearly terminated, and that it was morally certain the jury could not agree before the Court must adjourn, I think the exercise of the power was discreet and legal.

Much stress has been placed on the fact, that the defendant was in jeopardy during the time the jury were deliberating. It is true, that his situation was critical, and there Was, as regards him, danger, that the jury might agree on a verdict of guilty; but, in a legal sense, he was not in jeopardy, so that it would exonerate him from another trial. He has not been tried for the offence imputed to him ; to render the trial complete and perfect, there should have been a verdict, either for or against him. A literal observance of the constitutional provision would extend to and embrace those cases where, by the visitation of God, one of the jurors should either die, or become utterly unable to proceed in the trial. It would extend, also, to a case where the defendant himself should be seized with a fit, and become incapable of attending to his defence; and it would extend to a case where the jury were necessarily discharged in consequence of the termination of the powers of the Court. In a legal sense, therefore, a defendant is not once put in jeopardy, until the verdict of the jury is rendered for, or against him | and if for or against him, he can never be drawn in ques-Jñon again for the same offence. I entirely concur in re-probating the proceeding of withdrawing a juror, and attempting to subject a person to a second trial, because the public prosecutor was not prepared with his proofs. In the Case of the People v. Barrett & Ward, (2 Caines’ Rep. 304.) this Court considered it equivalent to an acquittal.

The only remaining inquiry is, whether the power of discharging the jury in this case could be exercised by the Sessions ?

The Court of General Sessions for the city of New-York, is clothed with powers not entrusted to the General Sessions of any other county. It has power to try for all crimes, (cases affecting life only excepted,) in as full and complete a manner as any Court of Oyer and Terminer and Gaol Delivery, for the said city and county, andean hear3

determine, and adjudge the same. (2 N. R. L. 530.) It is not necessary now to decide whether the Sessions in New-York, since the si.atute, can grant a new trial on the merits ; but having as full and perfect jurisdiction as the Oyer and Terminer, and Gaol Delivery, excepting in cases of life, over all other cases, no doubt can be entertained that they possess all the incidents appertaining to the power of trying for these offences; and the right to discharge the jury, under the facts and circumstances of this case, was an incident to the trial. Upon the whole, I am of opinion, that whenever, in cases of felony, a jury has deliberated so long upon a prisoner’s case as to preclude all reasonable expectation that they will agree on a verdict, without being compelled to do so from famine or exhaustion, then it becomes a case of necessity, and they may be discharged, and the prisoner may be again tried. In the present case, we consider the discharge of the jury as a discreet exercise of the powers of that Court, either on the ground that the jury had been kept together so long as to preclude all hope of their agreeing, unless compelled by famine or exhaustion, or on the ground that the powers of the Court were to terminate within a few minutesj and that it was morally certain that the jury could not agree within that period, which produced an absolute necessity for discharging them.

In this opinion my brethren entirely concur, and the consequence is, that Goodwin must be tried at the next Sittings, and his recognizance, and that of his sureties, will be re-spited until the next January term.

Motion to discharge denied.