
    The People against Barrett and Ward.
    
    After a prisoner lias pleaded to an indictment, the jury been sworn, and evidence offered, if the public prosecutor, without tho prisoner’s consent, withdraw a juror merely because he is unprepared with his evidence, tho prisoner cannot afterwards be tried oe the same indictment; if he be it is good cause for arresting the judgment.
    The jury in this cause, which was an indictment for a conspiracy, being duly sworn, the defendants were arraigned, and pleaded not guilty. Immediately after this, the district attorney served on Barrett a notice to produce a promissory note, mentioned in the indictment, or that parol testimony would be given of its contents; and asked his counsel if they were ready for trial, to which they answered they were. The *note was then called for, and on its not being produced, the district attorney offered the parol evidence. To this they objected, alleging the want of due notice, as the note was not in their possession, but at a house fourteen or fifteen miles distant; and the judge, being of the same opinion, refused to permit the parol testimony to be adduced. Whereupon the district attorney moved for leave to withdraw a juror, which was granted without the consent of the defendants. On a subsequent day they were again arraigned, tried, and found guilty on the same indictment. The question was, whether these circumstances were not sufficient to arrest the judgment ?
    Orary, for the defendants.
    We have to contend for this position, that if a juror be withdrawn without the consent of a prisoner, and merely for want of sufficient evidence to convict, he cannot, after evidence offered, be put again upon his trial for the same offence. That the jury sworn and charged in a criminal case cannot be discharged (without the prisoner’s consent,) till they have given a verdict,, is acknowledged to be the common tradition of the law. 4 Hawk. 459, b. 2, c. 47, s. 1. This is confessed even by the few cases which, in the reign of Charles II., were decided to the contrary. Sir T. Baym. 84. But all the books are against these determinations. Lord Coke, in 1 Inst., 227, b. sajrs. "a jury sworn and charged in case of life and member, cannot be discharged by the court, or any other, but they ought to give a verdict.” This position he, in 3 Inst. 110, extends to other inferior cases. “ To speak it here,” he says, “ once for all, if any person be indicted of treason, or of felony, or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must be heard, and they cannot bo discharged. In the case of Whitebread and Fenwick, (2 State Tri. 827, 828,) the practice now contended against was adopted; but those proceedings have been reprobated, even by the crown lawyers themselves; and Mr. Justice Foster, in speaking of them, declares them to be “ most unjustifiable,” and such as he “ hopes will never be drawn into example.” Foster, 16, 80, 88. It is only a Case of necessity that will warrant the withdrawing a juror. As if a man in a state of frenzy should put himself on his trial. 1 Hale, 85. Or a woman be seized with the pains of labor when under trial. Elizabeth Meadow's case, Foster, 76. Even in the case of Olcott, which has been thought to warrant the measure in this, there was a species of necessity; for the jury, after a very long confinement, ^declared they never should agree, and the court is not obliged to keep them together till they concur from fear of perishing with hunger. Holt, Oh. J. lays it down, that in a criminal case, not capital, a juror cannot be withdrawn unless by consent of both parties. The King v. Perlcins, Carth. 465. The same was ruled in an indictment for barratry. Rex v. Jeffs, 2 Stra. 984. The offence there was punishable in the same manner as that of which the present defendants have been accused. The right claimed by the district attorney is of so dangerous a nature, that the court never will tolerate it, even under the form of a power to be exercised under the discretion of the court. It ought not to be allowed, though wished to be shielded, by arguments derived from a wish to attain the ends of public justice. It will be a source of constant resort, whenever, from any neglect or omission, a prisoner cannot be convicted on his first being brought up for trial.
    THOMPSON, J. On the trial I gave no opinion as to the propriety or impropriety of withdrawing a juror. Wheu leave to do it was applied for, I recommended the counsel for the prisoner to permit it, reserving, however, the question for the determination of the court, and imagined the whole to be a matter of arrangement.
    
      Orary. I shall add only a few remarks on two citations that may be made against us. The first is the opinion oí Hale, in his Pleas of the Crown, 295, 296, 297. He speaks of the practice of his time, under the reign of Charles II. The doctrines of that period have been long overruled; and it may be doubted whether he himself does not allude to circumstances of misconduct in the prisoner. “ If it appear that evidence be kept back,” &c., are his words. Nothing of that kind can be, or is, imputed here. The note was nearly twenty miles* off. In 1 Vent. 69, The King v. Jane D-, the witnesses had been tampered with, and kept out of the way. These circumstances do not appear, and the authorities therefore cannot apply.
    Russel, (District Attorney,) contra.
    I shall first submit to the court whether the informality of the notice was not waived by the declaration of the defendants that they were ready for trial ? If not, I contend that in all cases the court possesses a discretionary power of withdrawing a juror, when justice requires it, even against the consent of the prisoner. The very case of doing so, if a man plead to an indictment when in a state of frenzy, is put as one of the proofs of this discretion, *and is said to rest upon it. 1 Hale, 35. The doctrine in 2 Hale, 295, is but partially stated. To withdraw a j uror is there said to be “ nothing more than ordinary,” when it appears there may be “ a fuller discovery,” and this, top, “ lest many notorious murders, or burglaries, should pass unpunished.” The reason, therefore, that it has been anticipated, would be urged, that is, lest there should be a failure of justice, is the very one given by Lord Hale, and therefore ought to be good and sufficient now. In th8 case of bad indictments, the court always, and on the above grounds, discharges the jury. Rex v. Segar & Potter, Comb. 401. The authority of Sir T. Raym. 84, is acknowledged to be in point. In Roberts' case, Kelyng, 26, the jury were discharged by the court, merely because they saw the evidence insufficient. It may be said these were cases of faulty indictments; but in that of Gardiner and others, ibid. 47, the jury were discharged merely because the testimony could not be made out without the examinations taken before the lord mayor. The right to do this, when the evidence is not complete, was again recognized, in Jones and Bevor's case, ibid. 52. Foster himself, p. 328, mentions that he should, in certain cases, use this discretionary power. It is worthy of remark, that the positions of Lord Coke, which have been relied on in 2 and 3 Inst., were examined in' Kinloch's case, (Foster, 16,) and denied to be correct. The time for which notice is to be given to a criminal to produce a paper, is nowhere settled. It has not been determined that it ought to be a two-day notice.
    THOMPSON, J. I decided nothing as to the time requisite, but merely that a notice to produce, instanter, an in strument near twenty miles off, was not good.
    
      Russel. From the conduct of the prisoner, it is to be presumed the paper was there. At all events, we contend that the withdrawing a juror is matter of discretion in the court,-and that they have a right to exercise it whenever they see the justice of the case requires it.
    
      Henry, in reply.
    The general position is, that where a jury, in a criminal case, is once charged with a prisoner, they cannot be discharged without his consent. There are, however, some exceptions; but the rule itself was framed as a shield to the subject against the power of the crown. This principle, if correct in a monarchy, is still more so under a republican form of government. But under both systems, necessity qualifies the rule, and proves its existence by the very ^exception it allows. One class of cases is, where the prisoner himself, by improper practices, has endeavored to elude justice. Another, where the indictment is not appropriate to the offence. A third, unavoidable accident; such as the absence of an expected witness, insanity, or any other dispensation of Providence. A fourth arises from the jury themselves; departure of one, or an invincible disagreement among the whole. 2 Hale, 295. For though unanimity in a verdict be necessary, a court will not force a jury into it for the sake of self-preservation. A fifth class, may be where the trial is so prolonged that the court and jury are tired out, and require refreshment. Within one of these descriptions of cases, every authority, in which the power has been exercised, will, on examination, be found to rank. It is, however, to be remarked, that in the edition of Kelyng, by Browne, in a note in p. 47, all the determinations cited from him are denied. Does, then, the present case fall within any of the qualifications enumerated ? There is not one which presents the naked fact of withdrawing a juror, merely because a public prosecutor was not prepared. It is claimed as a right to exercise this discretion ad libitum. From reason, from authority, from the policy, nature, and structure of our government, it ought not to be allowed.
    
      
       See ante, 100.
    
   Livingston, J.

delivered the opinion of the court. Without denying the right of courts to withdraw a juror in criminal causes, and put the defendant on his trial a second time, it is evident this power should not be lightly used, but confined as much as may be to cases of very urgent necessity, where, by the act of God, or by some sudden and unforeseen accident, it is impossible to proceed without manifest inj ustiee to the public, or the defendant himself. We do not mean, at present, to define all, or any of the cases in which this practice may be pursued, but we all agree that a defendant ought, in no case, to be put on a second trial for the same offence, where a juror has been discharged’on no other ground than because the public prosecutor found himself unable to proceed for the want of sufficient testimony to convict, and where this inability* was the consequence of his not taking the necessary measures to obtain it. To discharge a juror, under such circumstances, would be liable to great abuse and oppression. If the prosecutor disliked the jury, Or some of them, or hoped to find the defendant less prepared at a future day, or wished, unnecessarily, to harass him, he might, at any time, attain his end if, *by solely alleging the want of proof, after a jury were sworn, he could get rid of them. It will be much better that the guilty now and then escape, in this way, than to introduce, or sanction, a practice which may place the innocent entirely in the power of a court, or a public prosecutor, which this mode of trial was intended to guard against. It will be recollected there was no improper practice here, on the part of the defendants, or any tampering with witnesses to keep them out of the way. In saying they were ready for trial the defendants told no more than the truth ; but such declaration could not have obliged them to produce a paper against thems'elves, and which it does not appear they had with them. We are, therefore, of opinion, that the court below ought not to proceed to judgment on this conviction, but discharge the defendants.

It is proper to take notice of our opinion in this case, in August term last, and which differs from the one now given.

The question appears, at that time, to have been sub mitted ex parte, and without any intimation of th£ particular circumstance under which the juror was withdrawn. On the statement then made, which must have been very incorrect, we only meant to say' that there were cases in which a party might' be tried a second time, after a discharge of the first jury; but not that this rule was universal and liable to no exceptions. To dismiss a jury, merely because there be not testimony sufficient to convict, with a view to another trial, falls within the reason of none of the authorities which have been cited, and if we had known as much of this case then, as has been disclosed now, we could hardly have hesitated in pronouncing the second trial of these defendants irregular.

THOMPSON, J.

The case does not state the facts which took place at the trial. It appears permission was given to withdraw a juror. An application was made for that purpose, and some arguments urged as to the propriety of the measure. I advised an acquiescence, in consequence of which I considered then, as I do now, that this should come up as a case by consent to settle the point.

Judgment arrested.  