13 Wend. 55 | N.Y. Sup. Ct. | 1834
By the Court,
The question is, whether the discharge of the jury on the first trial amounted to an acquittal of the defendant? The doctrine that juries are to be compelled to unanimity by starvation, is near akin to the practice which once prevailed of transporting them in carts from one county to another, as the judge travelled from one assize to another, until they should agree. Both have long since been exploded, and are justly now considered as evidence of the barbarity of the age in which they existed. The subject has been fully considered by this court in several cases, particularly in The People v. Olcott, 2 Johns. Cas. 301, and The People v. Goodwin, 18 Johns. R. 200. The rule was laid down by Mr. Justice Iient in the first of these cases, which was acquiesced in by Chief Justice Spencer in the last, that the question of discharging a jury is one which must rest in the sound discretion of the court: “Either the court must determine when it is requisite to discharge, or the rule must be inflexible, that after the jury are once sworn and charged, no other jury can in any event be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, that moment a door is open to that discretion of the
It is true that in all the cases which have arisen in this court, the jury has not been discharged until a much longer time had been spent in efforts to agree than in this case ; but when it is 'admitted that the court has the power to discharge, and that the time when the power ought to be exercised rests in the discretion of the court, a case is presented in which it seems to me that if the power has not been discretely exercised, there can be no remedy by writ of error. I do not intend to say that the discretion of the court below was improperly exercised. It is however very unusual to discharge upon only an half hour’s consultation of the jury. Posssibly after longer discussion there mighthave been an unanimity of opinion. On that point the court below, who may have known the character of the jury, may have come satisfactorily to the belief that they never would agree, and that longer confinement would be unavailing. I can only repeat, what has often been said by others, that in such cases great caution and prudence are necessary. Juries should not be discharged, because upon the first comparing of opinions there happens to be a disagreement. Temperate discussion may produce una*
Judgment affirmed.