
    The People ex rel. Vincent J. Stabile, Relator, v. The Warden of the City Prison of the City of New York, Respondent.
    (Supreme Court, New York Special Term,
    April, 1910.)
    Criminal law — Former adjudication and second jeopardy — Discharge of jury.
    Where, without the consent of a defendant on trial for murder, the court discharged the jury in the absence of a declaration of inability to agree, the defendant is entitled to be discharged from custody upon a writ of habeas corpus, as the action of the court was equivalent to an acquittal and is a bar to a subsequent trial upon the same indictment.
    Habeas Cobptjs proceedings.
    Herman Joseph, Moses H. Grossman, Leo R. Brilles, Alexander A. Mayper and Augustin Derby, for relator.
    Charles S. Whitman, district attorney (Robert S. John-stone, deputy assistant district attorney, of counsel), opposed.
   Newburger, J.

This is a proceeding upon a writ of habeas corpus to discharge the rela.tor from custody. The relator was indicted by the grand jury of this county on December 30, 1909, for the crime of murder in the first degree. On the 7th day'of March, 1910, he was brought to trial in the Court of General Sessions. The trial continued from the 7th to the 15th day of March, 1910. The jury retired at five-fifteen p. m., and at nine-twenty-two p. m. of the same day they came into court to hear some testimony read and to receive some further instructions. They retired after receiving instructions and again returned to the court at ten-ten p. m. of the same day. The following then occurred: The 'Court: Mr. Foreman, have you agreed upon a verdict?• The Foreman: Hot as yet.” Ho request was made for the discharge of the jury; the jury did not declare themselves unable to agree, and they were not discharged with the consent of the defendant, his counsel or any one representing him. The court then stated that it did not desire to keep them together any longer, and that he would discharge them from the further consideration of the case. Section 428 of the Code of Criminal Procedure provides as follows: “After the jury have retired to consider of their verdict, they can be discharged before they shall have agreed thereon only in the following oases: (1) Upon the occurrence of some injury or casualty affecting the defendant, the jury or some one of them, or the court, rendering it inexpedient to keep them longer together; or (2) When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict; or (3) When with the leave of the court, the public prosecutor and the counsel for the defendant consent to such discharge.” It is conceded that there was no injury or casualty affecting the defendant, the jury or the court, and it is furthermore admitted that at no time did the jury state or declare themselves unable to agree upon a verdict. It has been repeatedly held that unless the jury have declared they were unable.to agree the court had no right or power to discharge them. Even prior to the enactment of section 428 of the Code the courts of this State uniformly held that a jury in a criminal case could not be discharged without the consent of the defendant and without disagreeing, and that when the jury was unwarrantably discharged it was equivalent to an acquittal and is a bar to a subsequent trial of the defendant on the same indictment. See People v. Grant, 4 Park. Or. Eep. 527, and cases there cited. In Ex parte Ulrich, 42 Fed. Eep. 587, the United States court, on a writ of habeas corpus in reviewing the action of the State court, held that where the jury had been discharged without the prisoner’s consent the discharge was equivalent to an acquittal, and that the court had no right to commit the prisoner for a second trial after discharging the jury without legal cause. I am of the opinion, therefore, that the discharge by the learned justice of the Court of General Sessions of the jury in this case was without warrant, and that no circumstances whatever existed calling for the exercise of the discretion of the court, and that such action is a bar to a subsequent trial of this relator upon the same indictment. The district attorney claims that the relator has mistaken his remedy and that a writ of habeas corpus will not lie. Has the relator any other remedy ? It is true that he might apply to the Court of General Sessions for his discharge upon the ground that the action of the court in discharging the jury amounted to an acquittal, but if the court should fail to. grant his motion, what is his remedy? He cannot appeal from the order, as it is not a final judgment. Section 517 of the Code of Criminal Procedure provides that the only case in which the defendant may appeal is from a judgment on a conviction after indictment. Is the defendant, therefore, to remain in custody and wait until he is again put upon trial, and, if he then interposes the plea of former jeopardy and is overruled, must he wait until there is a conviction before he can raise the question of whether he can be retained in custody ? It is true that the courts of this State have laid down the rule that the writ of habeas corpus should not issue unless it appeared that the court was without jurisdiction. If the discharge of the jury operated as an acquittal, then, certainly, the Court of General Sessions no longer had jurisdiction, for it was its duty to have discharged the relator. The case of the People v. Scharf, referred to by the district attorney upon his brief, does not apply. In that case there was a judgment of conviction, and the Court of Appeals by a vote of four to three held that the proper remedy was by appeal from the judgment. In this case there is no judgment from which the relator could appeal, and' he has no other remedy but to seek recourse to the writ of habeas corpus. For the reasons stated the writ must be sustained and the relator discharged.

Writ sustained and relator discharged.  