9 N.J.L. 256 | N.J. | 1827
The Chief Justice delivered the opinion of the court.
The defendant was brought to trial at the Court of General Quarter Sessions of the Peace of the county of Somerset, in June, 1827, on an indictment for assault and battery. After hearing the evidence, the jury withdrew to consider of their verdict, at about the hour of eight in the evening.
The doctrine on which the decision of this case depends, has undergone, within a few years, the most full and thorough investigation. In the case of The People v. Denton, 1 John, cases 275, the defendant was indicted for a misdemeanor in neglecting his duty as inspector of an election, and on trial, the jury, having heard the evidence, retired, and after being out all night, came into court with a verdict of not guilty, but on being polled, three of them dissented, and after being sent out several times they informed the court there was no prospect of their agreeing on a verdict. The Court of Sessions, without the consent of the defendant, discharged the jury, and the indictment being removed into the Supreme Court, it was there held that the power to discharge the jury existed, although to be exercised with great caution, and only after every reasonable endeavor to obtain a verdict had been found unavailing; that the discharge in the case in question was necessary and proper; and that the defendant should be again tried by another jury on the same indictment. In the case of The People v. Olcott, 1 John, cases 301, the indictment was for-a conspiracy to defraud the -Bank of Hew York and was tried in the Court of Oyer and Terminer of the county of Hew York. The jury remained out a long time, and being unable to agree, a juror was withdrawn, by the order of the court-, without the
In some of these cases, and especially those of Olcott, Goodwin and Purchase, the subject was examined at length, and all the authorities, ancient and modern, were reviewed by those enlightened judges, Kent, Spencer and Parker. A repetition of them on this occasion would be, at the least, superfluous.
In the case of The Commonwealth v. Cook and others, on indictment for murder, reported in 6 Berg, and Rawle
If it he supposed the rule sanctioned by these cases is in some degree a departure from tbo ancient principles of the common law, by something like judicial legislation, a careful perusal of the discussions to which I have referred will satisfactorily show that those principles are in accordance with the liberal and just spirit of our day, which will neither require a juror to decide between his conscience and starvation, nor justify him in yielding tho sincere dictates of his reason and judgment to the necessity of uniting in a verdict contrary to his convictions of right and duty, or remaining enclosed in the jury room until released by a power which neither jurors nor judges may withstand. And whatever may he said in books, for in practice I am slow to believe it ever occurred, of carting a jury, it certainly belongs toa
It was conceded by the counsel of Hall, on the argument, that on the principle of the modern cases, if a juror be seized with a fit, the jury may be discharged and another trial ordered. Why ? because a necessity exists — the cause cannot proceed. But is there not an equal necessity, to say the least, when one of the jury has absconded from his fellows ? —the cause cannot proceed — a verdict cannot he rendered. In legal contemplation a verdict is as impossible where a juror has departed and eleven only remain, as where one is suffering from a visitation of Providence, or as if he were actually dead. Moreover, in the one case the discharge of the jury is the act of the court, done deliberately, and with a view to all legal consequences; in the other the discharge is *effected without the consent of either the court or [*263 prosecuting attorney.
On this point, however, we have the direct authority of Sir Matthew Halo, and of a case cited by him. In his history of the pleas of the crown, he says, “ If after the jury are sworn and departed from the bar, one of them wilfully goes out of town, whereby only eleven remain, these eleven cannot give any verdict without the twelfth, hut the twelfth shall be fined for his contempt, and that jury may be discharged and a new jury sworn, and new evidence given, and the verdict taken oí the new jury, and thus it was done by good advice at the gaol delivery at Hertford, August lo, Car, 1, in the case of ITanscom, the departing
It ¡was remarked on the argument, with propriety and force, that the punishment of crime would be placed at great hazard, and a most dangerous temptation be held out to a juror favorable to the prisoner, if by departing from his fellows he could produce an effect equivalent to a verdict for the prisoner, and thus ensure his safety. It was answered, that the reverse of the picture should be viewed ; the power placed in the hands of a single juror who, contrary to the opinion of the others, might desire a conviction. But there is a wide difference to be seen between the two cases. In the one, he who seeks to favor the prisoner would, by departing, with certainty effect it; he who sought a conviction, however, could only induce, not a conviction, but simply a second trial. It was insisted by the counsel of Hall, thatjj punishment should be inflicted on the absenting juror for his misconduct, and the prisoner go forever quit. It is true the juror ought to be punished, and it is to be recommended that our courts should, whenever such instances occur, impose exemplary punishment, until the custom, said to be,common in some parts of the state, shall be completely repressed. But will such punishment satisfy the demands of public justice ? Suppose a murder committed. Shall the offender return to society with impunity? Though the juror is fined or imprisoned, will the innocent blood which^has been spilled cease to call aloud from the ground for vengeance ?
Upon the whole we are of opinion, that in the present *264] case, and *beyond it we mean to express no opinion, the jury were rightfully and legally discharged, and the defendant may be again pur upon trial on the same indictment, and his application for discharge ought not to prevail.
Eobjd, J., andJDRAJCE, J., concurred.