126 N.Y.S. 840 | N.Y. App. Div. | 1911
The relator, having been indicted for a violation of section 773 of the Penal Law, was- brought to trial on June 27,1910, at a Criminal Term of the Supreme Court, New York county. After the trial had progressed for two 'days, and on the morning of the third day, before the case had been submitted to the jury, information was laid before the justice presiding at the trial of certain actions upon the part of two of the jurors impaneled in the case. The
There can be no doubt as to the power of the trial court, in the exercise of a sound discretion, to declare a mistrial and to discharge the jury before the final subinission to them of the issues when, in the opinion of the court, matters have -arisen- during the course of the trial which make such procedure advisable. This is one of the ordinary powers resident in the court; and while the question of the proper exercise of such power is open to review, there is no question. made that the power, does exist. The remedy sought herein by writ of habeas corpus is not, however, the proper manner in .which to secure such review. It is sought to bring this case within the scope of the decision in People ex rel. Stabile v. Warden of City Prison (139 App. Div. 488), but there is no similarity between the- two cases. The decision in the case cited proceeded expressly upon the ground that the provisions of section 428 of the Code of Criminal Procedure, prescribing the method of discharge of a jury after they had retired to consider on their verdict, had not been complied with; and, therefore, when the jury were discharged by the trial justice before - they had announced their inability to agree, as required by that section, such improper discharge was in law the equivalent of an acquittal; there was then no lawful cause for a continued imprisonment of the relator based upon the original warrant, which had been issued upon the indictment. Here the condition of the trial was not such as to make the provisions of section 428 operative. So the general rule applied that if the jury in a criminal case is discharged, in the absence of circumstances rendering it proper for the court to exercise discretion in that behalf, it
The order appealed from must, therefore, be reversed, the writ dismissed, and the relator, remanded into custody.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Order reversed, writ dismissed, and relator remanded into custody.