delivered the opinion of the Court.
The motion in this case suggests three inquiries for our consideration : viz. 1st. As to the causes, for which the Court may discharge the jury, and remand the prisoner for a second trial, alter the jury have been charged, in a capital case. 2d. The time, at which a nolle prosequi may be entered. 3d. The effect oí a nolle prosequi, after the jury have been charged.
1st It seems at one time to have been thought, that, after the jury were charged, they must remain together until the verdict was rendered ; and that if they were permitted to disperse, even for i time, however short, it was an acquittal. This notion has, however, heen long since overruled, see 2 Johns. Ca. 303, et seq. ami a criminal case, uow, may, if the trial cannot be gone through in one day, be adjourned from day to day, until completed. 1 Ch. Cran. Law, 628. In England, the practice still appears to be to keep the jury together during the adjournment, under the ehargf of sworn bailiffs. In this State, they are air lowed to disperse.
In New-York, in a case of misdemeanor, the jury were unable to agree on a verdict; and one of them was therefore directed by the Court to withdraw, and only eleven answering on the call, they were discharged. It was contended that this was an acquittal of the defendant, but the Court held that it was not; and Kent, Justice, intimates, that it would not have been an acquittal even in a capital case. The People v.
In this State, the question has not met with any decision going beyond the English cases. In Bostick’s case, cited 1 M’C. 254, a juryman was taken ill, and the jury‘were discharged in consequence ; and it was held, that the prisoner might be tried again. <In the case of the State v. Burket and Boatright,
Taking, then, our own decisions, and those of the 17. S Courts, of Nevv-York, and of England, together, we are enabled to say, that a jury, after they are charged, can be discharged, and the prisoner tried a second time, for the following causes only: 1st. The consent of the prisoner. 2d. Illness of one of the jury, the prisoner, or the Court; 3d. Absence of one of the jurymen. Or 4th. The impossibility of their agreeing on a verdict. Beyond these, I apprehend the Court has no right to go. It is said, that it is a matter of discretion with the Court, to discharge the jury, whenever they may think it consistent with the ends of justice. It is true, it is a matter of discretion, but in the language of Ju-nius, it is a “ legal discretion,” and must be exercised in conformity to known rules. Arbitrary discretion is but another name for caprice, or favour. Under its exercise, the boldest may tremble, and the free be made slaves. It is better, therefore, to act upon a fixed rule, even if it should now and then enable the guilty - to escape, than to act without a rule^^ the terror and danger of the innocent. ^
2d. The Solicitor has the right to enter a nolle prosequi, at any time before the jury is charged, but not after. Cliitty, in his Criminal Law, 478, says, a nolle prosequi may'be entered during' all the stages of pleading to the indictment. As t» the power of entering it after issue, lie is silent, and I take it, therefore, tlmt in Ms. opinion, it could not be done. But Golden’s case, (supra)
But say that the second question was anew one, and that it must be settled by general principles, could we fail to come to the same conclusion ? Starting with the common law maxim before, us, “ no man shall he twice put in jeopardy of his life for the same offence we ask what is meant by jeopardy of his life ? It is where one is put upon his trial, upon a valid indictment, for a capital offence. It may result in his condemnation, and hence he is in jeopardy. To give every opportunity to innocence to escape, the law humanely affords to the prisoner the arbitrary choice of his jurors: he may challenge twenty of them peremptorily. After he has selected his jury, and they are charged with his case, can the Solicitor from defect of evidence, or an objection to a juryman, say, I will not now proceed with the trial; 1 will enter a nolle prosequi, and at another term give out a second one, and be prepared then with more evidence, and have a jury better suited to my wishes l This would, indeed, be literally twice putting the prisoner's life in jeopardy for the same offence. Cany the matter a little farther, and as was well argued by the learned counsel for the prisoner, allow this right to the Solicitor, and the prosecutor is prepared, by the first trial, to meet all the points of the prisoner’s d-fence, and even to shape his own testimony to conviction. This would be making the Court hold out every inducement to perjury, and subornation of peiju#^, and con/ert jury trials into engines to oppress and destroy, at the pleasure of the prosecutor. Such is not, cannot, and never will be the law.
It is said, however, that in this case, the Solicitor having discovered the bias of the foreman’s mind, had the right to arrest the trial; and to claim that the Court should discharge the jury, and remand the prisoner. The Solicitor acted from motives which do honor to him; and no man, who knows him, will believe that his course was adopted from any other promptings, than those of a high sense of duty to the State. But no matter how laudable may have been, his motives, I apprehend, it would be
But suppose the prisoner had been tried and found guilty, and was moving for a new trial on the ground that one of the jury believed, that “he who sheddeth man’s blood, by man shall his blood be shed,’’ and that this belief caused his conviction, the ground would avail him nothing. He would be answered,' “you had your twenty challenges, and if you had cause, you might on cause shewn, have challenged every man on the panel; you should have- objected as they came to the book to be sworn, and before they are sworn: your objection, if of any value, is now too late.” Ought the State to be more favoured than the prisoner ! Certainly not. If the prisoner had the prejudice of a single juryman in his favour, and the State, permitted him to be sworn, and the jury were charged with the case, it was the protection,.perhaps of error, but certainly a legal protection. The prisoner’s life was in jeopardy, and objections to the jury, or any of them, could no longer be made.
3d. The Solicitor having entered a nolle prosequi, after the jury were charged, and they being discharged, without any lawful cause, upon which the prisoner can be remanded, for trial a second time, it follow's that he is acquitted.
The motion is therefore granted, and the prisoner forever acquitted of the said offence, and discharged from prison,
Motion granted.