State v. Tyson.State v. Tyson.
Only оne exception is presented in the record and that arises upon the refusal of the court to sustain the plea of former jeopardy- and discharge the prisoner. It apрears that the prisoner was placed on trial under the-same bill of indictment at the April Term before Judge Bryan, who discharged the jury, аfter four and a half days, on account of the drunken condition of a juror, which incapacitated him from further service. Erom the findings of the court, we gather that after the evidence was closed and pending argument it was discovered that one оf the jurors, one Coving- *628 ton, bad without permission, authority or knowledge of the court or its officers, gone to his home and procured a quantity of liquor and was in a grossly intoxicated condition оn Friday night; that he had been drinking secretly all during the trial;'"that on Saturday morning, the last day of the term, the juror was in a very nervous and besotted condition and unfit for. duty, and that unavailing efforts were made to render him fit.' Whereupon the court discharged the jury and made a mistriаl, after making a full and complete finding of facts as apрears of record.
It is well settled and admits of no controvеrsy that in all cases, capital included, the court may discharge a jury and order a mistrial when it is necessary to attain the еnds of justice. It is a matter resting in the sound discretion of the trial judge, but in сapital cases he is required to find the facts fully and place them upon record, so that upon a plea of former jeopardy, as in this case,.the action of the cоurt may be reviewed. It is then the duty of this court to say whether the findings of fact made by Judge Bryan and appearing in the record, warranted him in making a mistrial in this case.
We have no' hesitation in declaring they fully justify his action and that His Honor,
Judge
Peebles, properly overruled the prisoner’s plea of former jeopardy. <We adhere to the maxim of the common law,-as incorporated in the Federal Constitution, that no person shall be twice put in jeopardy of life or limb for the same offense. It has been adopted and acted upon in this country from the foundation of thе government to the present time.
Garrigues’ Case,
Where a jury has been emрaneled and charged in„a capital felony and the рrisoner’s life put in jeopardy, the court has no power tо discharge the jury and hold the prisoner for a *629 second trial, except in cases of absolute necessity. McGimsey's case, supra. Where such absоlute necessity appears from the findings of the court and in .consequence thereof the jury has been discharged, then in lеgal contemplation there has been no trial. The faсt that the incapacity and illness of the juror is brought about by his own grоss misconduct makes no difference so far as the interests of justice are concerned. The .result is the same.
If we adopted the contention of the prisoner in this case, it would bе within the power of a drunken juror to- entirely defeat the ends of justice if he could get liquor enough to continue his intoxicatiоn. The court is in no way responsible through its officers, so far as we can see, for the deplorable condition of the juror. There was nothing else His Honor could do except declare the facts and discharge the jury. From these facts the law adjudges there has been no trial.
State v.
Scruggs,
No Error.