charged the jury about eight o’clock in the evening. They retired to consider upon their verdict, and returned into court before ten the same evening, when some points of law were explained, to them, and they were again sent out, and about twelve o’clock they were discharged; they having previously informed the court that they were equally divided, and that there was no prospect of their ever agreeing upon their verdict.
A motion was made to discharge the prisoner, by his counsel, on the ground that the court had no authority to discharge the jury but in extreme cases, and that this was not such a case.
The court were divided. VAN NESS was of opinion the jury were discharged too soon. THOMPSON, Circuit Justice, decided upon the motion, that there need not be a physical impossibility to a unity of opinion. He decided, the court had power to discharge the jury in criminal cases, and that it rested in the sound discretion of the court, under all the circumstances of the case; that it was not necessary the jury should be so far exhausted as to be incapable of further discussion and deliberation, nor was it necessary that they should be disabled by sickness, intoxication, or mental derangement. It was enough that they could not agree; that there was a moral disability. In this case the jury had been out near four hours; a length of time amply sufficient to agree upon their verdict, if they could. This was a plain question of fact for them to decide. There were no intricate questions of law in
As the court were divided, no judgment was given.