Opinion op the Court by
Reversing.
At the April term, 1934, of the Rockcastle circuit, court, the appellant, Ollie Mullins, was placed upon trial for the murder of Rosooe Morris. After the case bad been submitted to the jury for its verdict, the following order was entered by the court:
“The jury in the above styled case having returned into open court pursuant to adjournment, and after *530 the juror, Ed Ballard, had been sworn by the court, made the following- statement, viz: That on Friday night after the jury had been empaneled and sworn and at a time when the jury had been taken by the sheriff of Rockcastle County to the Rockcastle Hotel to a room where they were kept for the night; that he, the said Ballard, left said room alone and went down upon the streets of Mt. Yernon and across the streets to a restaurant where he stayed for some time and later returned to the room occupied by the jurors; that during his absence from the other jurors, he was not guarded by the sheriff or any of his deputies or guard of any kind. It is, therefore, ordered by the court that the jury in this case, because of said separation, be discharged and this case continued to the next term of this court.”
"When the case was called for trial at the next term of court, the defendant filed a motion setting out the proceeding and stating that it was over his protest, objection, and exception that the court had dismissed the jury and continued the case, and by reason of which facts he had been put in jeopardy and was entitled to have the prosecution dismissed, and so prayed. So far as the record discloses, this motion was ignored by the court. The trial continued, and the defendant was found guilty and sentenced to life imprisonment. On this appeal, several grounds are urged as authorizing a reversal of the judgment, but it is necessary to consider only the plea of former jeopardy.
Section 13, a portion of the Bill of Rights, of our Constitution, provides: “No person shall, for the same offense, be twice put in jeopardy of his life or limb.”
This expresses a doctrine so ancient that it is impossible to trace its origin. It seems always to have been imbedded in every system of jurisprudence, as it is “a part of the universal law of reason, justice and conscience.” 16 C. J. 233; Nolan v. State,
So, also, the courts recognize that the force of necessity is “ a power which no combination of men can successfully oppose and that it overrides all human laws, even our written constitutions.” Bishop’s New Criminal Law, sec. 1035. If there is any legal necessity for discharging the jury, the right of the court to order a mistrial on that ground exists without the defendant’s consent. State v. Thompson,
Concerning the discharge iof the jury before the end of the trial, it is stated in Robinson v. Commonwealth, supra:
“It must always be understood, however, that if the dismissal be from necessity, it does not operate as a bar to a further prosecution. This is necessary to the proper administration of justice.”
And it is pertinently said in Yarbrough v. Commonwealth,
“One trial, and only one, is an elementary principle in criminal law. Any other rule would be tyranny in a free country. It therefore has constitutional *532 sanction. Exceptions exist, from necessity, to the rale, bnt they should be few, and strictly guarded. 'They arise most frequently in cases where trials are begun, but not ended. Undoubtedly jeopardy may attach without waiting for a verdict. In a combat intended to be deadly, it cannot well be said one is not in danger until he is hit. If, however, a necessity exists for the discharge of the jury before the finding of a verdict, then the proper administration of' justice requires that this should constitute an exception to the general rule. To allow one charged with crime, however heinous, to go free because the jury had to be discharged by reason of the illness of a member of lit, or the sudden sickness of the judge, would be a defeat of the end sought, at the expense of reason. This necessity may arise in various forms. "One is a mistrial from a failure of the jury to agree.”
See, also, O’Brian v. Commonwealth, supra; Williams v. Commonwealth,
What is to be deemed a necessity must obviously be left open, for who can preconceive the multifarious conditions arising when the human element is the factor? The decisions must be confined to the given cases. It must be determined in each case whether or not the circumstances necessitate the discharge of the jury. Even when there was. repetition of the exact conditon, or a presentation of analogous circumstances, the judicial minds have not always agreed. Wharton’s Criminal Law, sec. 394, lists a number of instances where the discharge of the jury was held to be necessary, and hence that jeopardy did not attach. See, also, Roberson’s Kentucky Criminal Law, sec. 122; 16 C. J. 251; State v. Hansford,
The Legislature undertook by the enactment of what are sections 243 and 252 of the Criminal'Code to provide that the dismissal of a prosecution and discharge of the jury during the progress of a trial or after submission should not be a bar to another trial, but those provisions were long ago held unconstitutional in so far as they attempt to authorize a dismissal of *533 an indictment for felony after jeopardy attached. Williams v. Commonwealth, supra; Robinson v. Commonwealth, supra. However, section 251, Criminal Code of Practice, provides that if after retirement a juror becomes so sick as to prevent the continuance of his duty, or other accident or cause occur preventing the jury from being kept together, or if there ds no probability that the jury can agree upon a verdict, the court may discharge them; ior if a juror becomes sick temporarily, the court may permit him to separate from the others. This does not define or enumerate all the causes upon the happening' of which the power of the court may be exercised. The statute is only intended as an adoption of the legal rule that a case of actual necessity must exist before the jury can be discharged. O’Brian v. Commonwealth, supra.
Whale attempts to say what is to be regarded as creating a necessity have not been satisfactory, it may be generally stated negatively that an order of mistrial is not necessary if the occurrence is a matter that could be waived by the accused and which would not, ipso facto, vitiate any verdict that might be returned. In 16 C. J. 253, it is written:
“At common law, where the jury separated after retiring, they might be discharged and a new jury sworn, by whom the accused might then be tried; and this rule has been followed in some of the states. In other states, however, it has been held that where a jury disperse or separate after they have retired to make up their verdict, such circumstance does not authorize their discharge, and if they are discharged a plea of former jeopardy should be sustained in a subsequent prosecution. Where, even with the consent of accused, the separation of the jury is permitted before they retire, and on reassemblage any of them are missing, and the jury are discharged for this reason, he afterward may plead former jeopardy.”
Let us look to our precedents, which on the facts are only analogous but on the principle are controlling. Our leading ease is O’Brian v. Commonwealth, 9 Bush (72 Ky.) 333,
“Service on the grand jury which found the indictment does not render the discharge of the juror a necessity; it merely raises a question of implied bias, which accused may challenge or waive. # # #
“'To authorize the discharge of a duly impaneled jury before verdict, a manifest necessity therefor must exist, and a plea of former jeopardy will not avail where such necessity exists. However, the discharge of a jury for a reason legally insufficient without accused’s consent and without an absolute necessity for it is equivalent to an *535 ■acquittal and may be pleaded as a bar to subsequent proceeding’s: * * * If a jury is discharged during trial with the prisoner’s concurrence, his consent thereto is an implied waiyer of any objection to being tried anew and he may be so tried. •So his consent to the discharge may appear as well by implication from the circumstances as by express words.”
In Hilbert v. Commonwealth,
“The act of the sheriff in letting the sick juror separate from the others did not discharge the jury. The trial might have proceeded, if the attendance of the juror could have been secured; and, when it ¡could not be secured, the court properly discharged the panel.”
In Hopkins v. State,
See, also, Hilands v. Commonwealth,
Returning to the pase in hand. It has been the consistent rule of practice that, when a defendant learns of the separation of the jury during the course of his trial, he is under the duty of making prompt and seasonable objection. Unless he does so, he will be deemed to have waived his right to object. Wilson v. Commonwealth,
Although it is stated in the motion to dismiss the prosecution on account of former jeopardy that the discharge of the jury was over the defendant’s objection, that is not shown by the bill of exceptions and may not be regarded. The record available for our consideration is simply the order of the court which we have copied, and it makes no reference to the attitude or action of the defendant at the time. We consider the case as if he remained silent. The adage, “Silence gives consent,” is not always true. It is fallacious when there is .no duty to speak. Thus it is a fundamental and familiar rule of practice in a criminal trial that the defendant does not have to object to erroneous instructions-. He may avail himself -of such an error, although he remained silent. So is the effect of his silence in -the matter of the discharging a jury either on motion of the prosecutors or by the court, sua sponte. 16 C. J. 255; State v. Richardson, 47 S. C. 166,
In Robinson v. Commonwealth, supra, when the court set aside the jury there was no express consent by the defendant nor any circumstances from which consent could be properly implied. He remained silent. Said the 'court:-
“The rule should not be extended so far as to require him, for the protection of this organic right to object.to- the action of the court.”
In Riley v. Commonwealth, supra, we construed the statement of counsel to -the court that he could take whatever course he thought proper as being an implied consent to discharging the juror, but observed, “Had accused remained silent, a different question would be presented. ’ ’
The; conclusion is inevitable that the appellant -can *537 not be held to have consented to the withdrawal of his case from the jury because he dlid not offer any objection to such course, especially whlere he was not asked if he had any objection.
There remains the consideration of section 164 of the Criminal Code of Practice providing that the defense of jeopardy must be by a plea in the form out-, lined. A distinction is to be recognized where the plea rests ion grounds extrinsic of the record in which the right to the protection is to be found. The defense may be raised by motion where the accused has- been in jeopardy under the same indictment on which the conviction is sought; but when he has been previously tried and another indictment found the court is not presumed to know of the former trial unless it is made to appear by plea and proof. Commonwealth v. Daniel,
Although the appellant vigorously insists- upon his innocence, and that the verdict is flagrantly against the evidence, we have not gone into the record. Be an accused person ever so guilty, the commonwealth must inflict punishment only in a legal and constitutional way. Nothing gives more strength to and confidence in the judiciary than an adherence to these ancient and constitutional principles affecting the lives, liberties, *538 and rights of the people. The constitutional conscience imperiously demands it.
On the showing made in this record, the trial court should have sustained the plea of former jeopardy and dismissed the prosecution.
"Wherefore, the judgment is reversed and the case remanded for proceedings consistent with this opinion.