18 Tenn. 532 | Tenn. | 1837
delivered the opinion of the court,
The right of trial by jury has always been regarded by the English and American jurists as one of the most sacred principles of the law, one to which the citizen is more deeply indebted than to any other for that security to life, liberty and property guaranteed in Great Britain and the United States to an extent unknown in other countries, and the preservation of which in its purity and independence, has at all times been guarded with a most watchful and jealous eye. Therefore it is, that an attempt whenever made by the courts to interfere with the privileges of a jury, and endanger their independence, and the consequent security of the subject, has at all times been promptly resisted, and though, occasionally, in times of great political excitement in England, it may have succeeded for the day, yet to the honor of the legal profession, the usurpation has always been rebuked, and the proper balance of power between the court and the jury quickly restored. It is a well understood maxim of our law, that the judges are to expound the law, and the jury to ascertain the facts, neither of which has the power to interfere with the province of the other.
In the case of The People vs. Goodwin, 18 Johnson’s Reports, 187, Judge Spencer, in delivering the opinion of the court, says, “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.”
In the case of the United Slates vs. Coolridge, Gallison’s Rep. 364, Justice Story says “that the power to discharge a jury in capital cases should only be exercised in very extraordinary and striking circumstances.”
In the case of the United States vs. Haskell and Francois, 4 Wash. 411, Judge Washington says, “that a court is fully authorised to discharge a jury in cases of necessity in capital cases as well as misdemeanors.”
In the case of the United States vs. Perez, 9 Wheaton, 579, Judge Story, in delivering the opinion of the court, says, “We think that in all cases the law has invested courts with the authority to discharge a jury from giving a verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would be defeated; but that the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes, and in capital cases especially the court should be extremely careful how they interfere with any of the chances of life in favor of the prisoner.”
In the case of The People vs. Barrett, Livingston, Judge, says, “Without denying the right of courts to withdraw a juror, in criminal cases, and put the defendant on his trial a sec
These decisions made by the first tribunals of the country, completely sustain the position that the power to discharge a jury, without a verdict, is not the exercise of an arbitrary discretion, but an extremely delicate duty, only to be perfoimed in cases of urgent necessity.
This brings us to the examination of what constitutes this ■necessity. We are of opinion that the causes which create this necessity may be classed under three heads. 1st. Where ¡the court is compelled by law to be adjourned before the jury can agree upon a verdict. 2d. Where the prisoner, bj^his own misconduct, places it out of the power of the jury to investigate his case correctly, thereby obtaining an unfair advantage of the State, or is himself, by the visitation of providence, prevented from being able to attend to his trial; and 3d. Where there is no possibility for the jury to agree upon and return a verdict.
It is upon the last of these propositions that the question in the case under consideration arises. The jury were em-pannelled on Thursday evening, at 2 o’clock, and were discharged at 9 o’clock on Friday morning, because they could not agree upon a verdict, the court continuing its session until sometime on the Saturday following. Now, the question is, was this such a case of necessity as justified the court in discharging the jury? A jury may not be able to agree upon a verdict for many reasons, such as sickness or insanity of one or more of the jurors, exhaustion of the jury before they have been able to come to a decision of the case, the absconding of one of the jurors, without the consent of the court. These are cases put in the books, and with others of like character, constitute what we will distinguish as cases of physical impossibility. A jury may also not be able to agree because their minds cannot come to the same conclusion from the facts submitted to their consideration. This, we would consider as a case of moral impossibility; and we are called upon to say whether it constitutes a
There is no English decision then sustaining the position that the court has the power to discharge a jury because they cannot agree upon a verdict, unless there be some physical impossibility connected with it, and so we think is the spirit of all the American authorities when properly understood.
In the cases of the Commonwealth vs. Cook and others, 6 Serg. and Rawle, 577, and the Commonwealth vs. Clue, 3 Rawle’s Reports., the supreme court of Pennsylvania have decided that an inability of the jury to agree is no ground for discharging them, and in Haskell and Francois’ case, 4th Washington Rep. 411, Judge Washington says he entirely concurs with the supreme court of Pennsylvania, in the opinion in Cook’s case, 6 Serg. and Rawl,* that the court ought not to discharge a jury merely upon the ground that they say they cannot agree, however positive the declaration may be. These cases are of very high authority, and we consider the reasoning satisfactory.
But it is said that they are contradicted by the decisions of .the supreme court of the United States and other States of the Union,. We will briefly examine the casesreferred to
The next case we will examine, is that of the Commonwealth vs. John Bowden, 9 Mass. 494, there a jury was discharged after being out a part of a day and a whole night, •and it was held by the court not to be a discharge of the prisoner — this was a case of highway robbery. The question 'does not appear to have been elaborately investigated, for so far as we can judge from the argument of the counsel for the prisoner, it turned upon the point of whether the court had power, under any circumstances to discharge a jury without the consent of the prisoner, for the. argument was, that in a capital case the jury could not be discharged with the consent of the prisoner, nor in any criminal case, without such consent. The court say, that the strictness of the law, upon this subject has very much abated in the English courts-, and that it would not be consistent with the genius of our government to use compulsory means to effect an agreement among
In the case of the People vs. Godwin, 18 John. Rep. 188, the jury was not discharged till within half an hour before the adjournment of the court; and in the opinion of the court delivered by Judge Spencer, he says, 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 and exhaustion, it becomes a case of necessity and they may be discharged. And that in the present case we consider the discharge of the jury 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
The reasoning of the case in Pennsylvania, we have said, is to our minds entirely satisfactory. If a moral impossibility for a jury to agree, without being attended with some physical impossibility, constitutes a case of necessity, it is manifest that the decisions of the inferior court can never be reversed. For how tan the superior court know whether the jury could have agreed or not, and how long shall the inferior court be compelled to keep the jury together, before it shall be warranted in saying, that they cannot possibly agree? shall it be an hour, a day, a week, or a month?
Upon the whole, the power of discharging a jury, agaiust the consent of the prisoner, is of such a dangerous character, that we hesitate not in saying that it should not be exercised by the courts, where the jury cannot agree on a ver-
Judgment reversed.