
    Commonwealth vs. Charles H. Sholes.
    Affcez a jury had been empannelled to try the defendant in an indictment for a felony, hia counsel desired to present a motion to quash the indictment for formal defects therein, and, in order to enable him to do so, it was agreed by the district attorney and the counsel for the defendant, in the defendant’s presence and without objection from him, and with the consent of the presiding judge, that what had been done should be treated as null, and the motion should be made, and if overruled the jury should be sworn over again. The motion was accordingly made and overruled. Reid, that the defendant could not afterwards object to being tried upon a new empannelling of the same or an other jury, on the ground that he had been once put in jeopardy.
    An indictment is valid which purports to be found by the grand jury “ upon their oaths,” • instead of “ upon their oath.”
    An indictment under Gen. Sts. c. 165, § 9, for an unlawful attempt to procure a miscarriage need not allege that the act was done “ maliciously and without lawful justification,” but it is sufficient to allege that it was unlawfully done, with intent to cause and procure the miscarriage.
    Indictment found under Gen. Sts. c. 165, \ 9, at November term 1863, commencing, in the body thereof, thus : “ The jurors for the Commonwealth of Massachusetts on their oaths present,” and setting forth that, at a time and place named, the defendant “ unlawfully did use a certain instrument ” in a manner wnich was particularly described, in and upon a certain woman, who was pregnant, “ with intent then and thereby to cause and procure the miscarriage of the said woman.”
    The defendant was placed at the bar to be tried at January term 1865. After a jury had been empannelled, his counsel who came into court while the clerk was swearing the jury stated that he had a motion to quash the indictment which ho desired to make, and which perhaps should have been made before the jury were sworn, in order to save the defendant’s rights. The judge informed him that, under the statute, the motion could not now be entertained, but, if all parties would assent that what had been done should be treated as null, he would entertain the motion, and, if overruled, the jury would be sworn again. To this arrangement the counsel for the defendant and the district attorney severally assented orally, and the prisoner being present made no objection.
    A motion to quash was then presented, commencing thus: “ And now, before the jury has been sworn for the trial of the defendant, he moves that the indictment be quashed,” assigning various reasons which are now immaterial, no one of them having been relied upon at the argument in this court. The motion, was argued, and at a subsequent day overruled. The woman in question, who was a material witness for the Commonwealth, and who had been present in court on the former day, was now absent, and the district attorney was not ready to proceed to trial without her, and she was not found before the adjournment of the term of court without day. At October term 1865, the defendant filed a new motion to quash, assigning for reasons that a legal jury was lawfully empannelled to try the indictment, and the defendant was set to the bar to be tried on it by them, and that he could not now be tiled, having once been in jeopardy ; and this motion was overruled. At November term 1865, he filed a new motion to quash, assigning for reasons, 1. That the indictment was insufficient, in that the jurors make their presentment on their oaths, and not upon their oath. 2. In that the defendant is not alleged to have committed the acts therein mentioned “ maliciously and without lawful justification.” 3. That it was in other respects informal, insufficient and void. This motion was overruled by Putnam, J., and the defendant was tried before the jury, and found guilty. He thereupon filed a motion in arrest of judgment, assigning the same reasons as those contained in his last motion to quash; but this motion was overruled.
    To the above various rulings, the defendant alleged exceptions.
    
      
      C. R. Train & F. F. Heard, for the defendant.
    Reed, A. G., for the Commonwealth.
   Gray, J.

1. The statements of Lord Coke in Co. Litt.- 227 b and 3 Inst. 110, that a jury sworn and charged with a case of treason or felony cannot be discharged without giving a verdict, have been often doubted and disregarded, and in a very recent case have been authoritatively determined not to be the "Jaw of England. Winsor v. The Queen, Law Rep. 1 Q. B. 289, 390. In that case, after full examination of the authorities, it was held by the courts of queen’s bench and exchequer chamber that the discharge of a jury, even in a case of felony, was within the discretion of the judge presiding at the trial, and not subject to the revision of a court of error. The power of the court to discharge the jury from giving any verdict, even in a capital case and without the consent of the prisoner, whenever in the opinion of the court there is a manifest necessity for so doing, or the ends of public justice would otherwise be defeated, has been affirmed by the supreme court of the United States, although the constitution of the United States provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. United States v. Perez, 9 Wheat. 579. And a discretionary power in this respect has been repeatedly recognized by this court. Commonwealth v. Bowden, 9 Mass. 494. Commonwealth v. Purchase, 2 Pick. 521. Commonwealth v. Roby, 12 Pick. 503.

The extent of this power we have no occasion particularly to discuss, for it is very clear that when the jury is discharged at the prisoner’s request, or with his consent and for his benefit, he may be afterwards tried' anew. Kinloch’s case, Foster, 16, 22 S. C. 18 Howell’s State Trials, 395; 1 Wils. 157. Rex v. Stokes, 6 C. & P. 151. Commonwealth v. Cook, 6 S. & R. 577 2 Bennett & Heard’s Lead. Crim. Cas. 363. In this case, the defendant’s motion to quash the indictment for defects of form, not having been made before the jury was sworn, came too late. St. 1864, c. 250, § 2. Commonwealth v. Walton, 11 Allen, 238 The suggestion of the presiding judge, that, if all parties would assent that what had been done should be treated as null, he would entertain the motion, and, if it should be overruled, the jury would be sworn over again, was intended to enable the accused to make a defence which be could not otherwise have made, and was assented to by the counsel for the Commonwealth and by his own counsel in his presence, and without objection from him. To hold that a prisoner, under such circumstances, could not bind himself by assenting to an arrangement made for his benefit, would be to establish a rule which must necessarily prevent such an indulgence from being ever extended to persons accused of crime. As neither the same jury, nor any other, was afterwards sworn or charged with the case at the same term, the adjournment of the court, without again taking up the case, and the trial at a subsequent term, afford no just cause of exception.

2. Of the reasons given in the superior court for moving to quash the indictment, only two have been argued before this court.

One of them is,f that the indictment purports to be found by the grand jury “ upon their oaths,” instead of “ upon their oath.” But the difference is unimportant. When it is described in the usual form as “ their oath,” it is not the joint oath of all, but the separate oath of each one respectively. It is not even administered to them all together as one body, but first to the two first named on the list, and then to the others in such divisions as the court may deem proper, and any person returned as a grand juror who is conscientiously scrupulous of taking the oath is allowed to make affirmation. Gen. Sts. c. 171, §§ 5, 6. Wadlin’s case, 11 Mass. 142. When some are sworn, and some are affirmed, it is sufficient for the indictment to be presented upon “ their oath and affirmation,” although not one of them has taken both an oath and an affirmation. 9 C. & P. 78. Commonwealth v. Fisher, 7 Gray, 492. Lord Hale, in the place cited for the defendant, says that although the indictment, as it stands upon file in the court, is only thus, Jwratores pro domino rege super sacr amentum suum prcesentant, yet when this comes to be returned upon a certiorari it is more full and explicit, and puroorts to be presented per sacr amentum, E. F, G. H. &c., proborum et legalium hominum comitatus prcedicti juratorum, &c. 2 Hale P. C. 165. And it is stated in Hawkins, and repeated in Bacon’s Abridgment, that the caption must show that the jurors found the indictment “ upon their oaths.” 2 Hawk. c. 25, § 126. Bac. Ab. Indictment, I.

The other specific objection taken to the indictment is that the defendant is not alleged to have committed the act therein described maliciously and without lawful justification.” But we are of opinion that no such allegation was necessary. The indictment, folio-wing the words of the Gen. Sts. c. 165, § 9, on which it is based, alleges that the defendant did the act described “ unlawfully,” and “with intent to cause and procure the miscarriage of the said woman,” and sufficiently sets forth a criminal act and a criminal intent. The word “ unlawfully ” negatives and precludes any inference or possibility that the act was done by a surgeon for the purpose of saving the life of the woman, or under any other circumstances which would furnish a lawful justification. Any unlawful use of ay instrument, with intent to procure miscarriage, is made criminal by the statute. The learned counsel for the defendant admit that if the word “ feloniously ” had been inserted in the indictment, their objection could not be supported. And the Gen. Sts. c. 168, § 2, provide that “ it shall not be necessary to allege in any indictment or complaint that the offence charged is a felony, or felonious, or done feloniously; nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words 6 felony,’ 1 felonious,’ or 1 feloniously.’ ” Commonwealth v. Jackson, 15 Gray, 187.

3. The grounds assigned for the motion in arrest of judgment are the same as those stated in the motion to quash, and have been already considered, except the last, which is but a general statement that the indictment is in other respects “ informal, insufficient and void,” and under which the defendant has no* pointed out, and could not, by the St. of 1864, c. 250, take ad vantage of, any formal defect not specially assigned in the motion to quash. Commonwealth v. Walton, 11 Allen, 238.

Exceptions overruled.  