| Ala. | Dec 15, 1876
The question presented in this cause is, whether or not the discharge of the jury, under the circumstances attending it, after testimony had been submitted to them, should be allowed to operate as an acquittal of the defendant below. She was indicted for the offense of arson; and after the jury had been impannelled, sworn, and charged, and one witness had testified in chief on behalf of the State, one of the jurors “ applied to the court to be excused from further service on said jury, on account of his being so sick as to incapacitate him from further serving on said jury. Thereupon, the court questioned said juror, under oath, as to whether he was so sick as to incapacitate him for the performance of his duty as a juror,. Upon said juror giving an affirmative answer, * * * the court stated that he thought Mr. Clay,” the juror, “ was unable to sit on the jury through the trial of said cause, and thereupon discharged him from the jury, against the protest and objection of ” the
It is well settled, that, if by any overruling necessity, tbe jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the court, or of a juror, * * * * * the accused may again be put upon trial, upon the same facts before charged against him, and the proceedings had will constitute no protection.” (Cooley on Const. Lim. 327-8.) Mr. Bishop, in his Criminal Law, vol. 1,- § 869 (667, b), says: “ In the next place, sickness may come, unknown before it comes; and if, while the cause is on trial, it falls on the judge, or a juryman, or the prisoner, falls to interrupt the proceeding before final verdict rendered, this result shows that no jeopardy existed in fact, though believed to exist; and the- prisoner may be put to answer anew.” In the thorough investigation of this subject by Judge 'HeNRY Goldthwaite, in Ned v. The State (7 Porter, 188), it was shown to be unquestionable that the sickness of a juror, when sufficient to incapacitate him for the performance of his duty, justified his discharge from the cause, and the consequent dissolution of the jury; and that this would not constitute a bar to the trial of the accused at a subsequent time. This has ever since been regarded, and frequently been recognized, as sound law in this State. "We do not understand appellant’s counsel as denying the correctness of that view. What is most complained of is, that the court did not, as insisted at the time by defendant’s counsel, proceed according to section 4201 of the Bevised Code, and cause another person to be summoned to take the place of the discharged juror, and commence the trial anew. That whole section is as follows : “If, before the jury retire, one of them becomes so sick as to incapacitate him for the performance of his duty, or any other cause renders it necessary, in the opinion of the court, to discharge a juror, such juror may be discharged, another summoned in his place, and the trial commenced anew.” Certainly, a judge should not lightly decline to exercise the power conferred on him by the latter part of this enactment. Whether or not there was a sufficient excuse for not so proceeding, in this, instance, is not a question now to be considered. The important inquiry is, did the failure or refusal of the judge then to have another person summoned, and put upon the jury bench, and commence the trial anew, amount to an acquittal of the defendant, or entitle her to be discharged from any further respon-
When does such jeopardy to the accused exist? Mr. Bishop says, § 856 (659), that it occurs only when “ a traverse jury is impannelled and sworn to try the cause. Then his jeopardy begins; and it begins only when the pannel is full.” Sometimes, however, as we have seen above, the jeopardy is more apparent than real — as when, by reason of the sickness or death of the judge, or of a juror, the trial is prevented and fails. In the case of the sickness of a juror, it fails because of his discharge, when his condition requires it, which discharge reduces the jurors below the number necessary to make the pannel full, and compels the parties to begin the trial cmeiv. This, we have seen, is the consequence, according to the common law, and almost all the authorities, when a juror is properly discharged on account of serious sickness; and the section quoted, which is only supplemental to the common law, differs from it, merely in authorizing the addition of another juror to the remaining eleven, instead of requiring the impannelling of another jury entire. Both the common law and the statute impliedly affirm, by providing that the trial shall be commenced anew, that what has taken place and been done, before and at the time when the juror has in such a case been discharged, does not operate to entitle the accused to go free, by reason of the jeopardy he has hitherto incurred.
What legal jeopardy, then, was this appellant afterwards placed in ? Suppose the rest of the jury had not been dismissed. There would have been eleven persons only chosen, not a full pannel. The position of the accused would have been precisely that she would have occupied, if, in the original formation of the jury, eleven had been selected, and the judge had refused, for any cause, to go forward and complete the pannel, and, in consequence of this, the trial at that term of the court had not been had. Certainly, this, whatever other redress it might entitle a defendant to, could not be pleaded as a bar to his trial at a subsequent term. He was not put in a situation of legal jeopardy, until the pannel was full, and all the jurors sworn well and truly to try the issue between him and the State, and a true verdict to render. This was the condition in which appellant stood when the judge was requested to substitute another person in place of the juror who was discharged on account of sickness. It did not entitle her to go free. The demurrer to the special plea was, therefore, properly sustained.
We find no error in the record, and the judgment is affirmed.