
    Williams v. The Commonwealth.
    December Term, 1845.
    [41 Am. Dec. 403.]
    (Absent Robertson, J.)
    i. Criminal Law-Discharge of Jury. — On a trial for a felony, the Court lias no authority to discharge the jury without the consent of the prisoner, merely because the Court is of opinion that the jury 'will not he able to agree.
    
    2. Same — Same.—There must be a necessity for the discharge of the jury to authorize it.
    *3- Same — Improper Discharge of Jury — Effect.— If the Court improperly discharge the jury without the consent of the prisoner, he is entitled to be discharged from the prosecution.
    4. Same — Practice of Discharging Jury Simultaneously with Final Adjournment of Court Approved. — The practice of finally adjourning the Court, without noticing the jury, whereby it is discharged by operation of law; or of discharging them simultaneously with the final adjournment of the Court, approved.
    This is an application to this Court for a writ of habeas corpus. The case is fully stated in the opinion of the Court.
    Spalding- and Washington, for the prisoner.
    The Attorney General and Caskie, for the Commonwealth.
    
      
      Criminal Law — Discharge of Jury. — To the point that, in a criminal case, the jury cannot be discharged without the consent of the accused, merely because the court is of opinion that the jury will not be able to agree, the principal case was cited in Wright v. Com., 75 Va. 915; Crookham v. State, 5 W. Va. 512; State v. Hurst, 11 W. Va. 78.
      But in Wright v. Com., 75 Va. 915, it is said: “This case (Williams v. Com.), has no application to the case at bar. It declared, it is true, that in a case of felony the court could not discharge the jury without the consent of the accused, merely because the jury could not agree. But this decision was made prior to the passage of the act passed March 4th, 1848, and which has been incorporated in our Code ever since. Prior to the passage of that act, the power of the court to discharge juries upon their nonagreement was confined to cases of misdemeanors. Butby the express terms of that act it is provided, -that ‘in any criminal case the court may discharge the jury when it appears they cannot agree in a verdict, or that there is manifest necessity for such discharge.’ See Code of 1873, p. 1246, § 12; see also, Dye v. The Commonwealth, 7 Gratt. 662. There can be no question, therefore, of the power of the court, when it became satisfied that the jury could not agree, to withdraw a juror, without any consent on the part of the prisoner, and to discharge the jury and continue the case.”
      And in Crookham v. State, 5 W. Va. 512, Maxwell, J., after setting out the decision of the principal case as above laid down, said: “This case (Williams v. Com.) was decided at the December term, 1845, of the court, and it cannot be doubted, was decided correctly as the law then was. But the General Assembly of Virginia very soon thereafter passed an act to the effect that, in any criminal case, the court might discharge the jury when it appeared they could not agree in a verdict. The provision is found in our Code p. 718, sec. 7, in these words; ‘In any criminal case the court may discharge the jury when it appears that they cannot agree in a verdict.’ The order of the court states that the jury being unable to agree upon a verdict were discharged. Unless the provision of the Code j ust quoted is to be disregarded the court committed no error in discharging the jury without the consent of the prisoner.” See the principal case also cited in Jones v. Com., 86 Va. 742, 10 S. E. Rep. 1004; Gruber v. State, 3 W. Va. 702.
      See also, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
      Sapie — Improper Discharge of Jury — Effect.—If the jury is improperly and illegally discharged, such-improper discharge of the jury is equivalent to the acquittal of the prisoner, and the prisoner is therefore entitled to his discharge from further prosecution. State v. Davis, 31 W. Va. 393, 7 S. E. Rep. 26, citing, among others, the principal case and Com. v. Fells, 9 Leigh 613.
    
   CHRISTIAN, J.,

delivered the opinion of the Court.

This is an application on the part of John Williams to this Court, praying- the writ of “habeas corpus,” and that he may, by this Court, be discharged from custody. In his petition, he states that he was indicted at the late term of the Circuit Superior Court of Haw and Chancery for the county of Henrico and City of Richmond, for larceny; that he was put upon' his trial on the 28th of October, and afterwards on the same day, the, jury sworn in his case, after having heard the same, were sent out to consult of their verdict; and not being able to agree, were, on the adjournment of the Court on that day, committed to the care of the sheriff and he was remanded to jail. That on the 29th of the same month he was again set to the bar, and the jury were brought into Court, and not having agreed on a verdict, were again committed to the custody of the sheriff, and he again remanded to jail. That on the 30th of the same month, he was again set to the bar, and the jury were again brought into Court, and not having agreed on a verdict, were again committed to the custody of the sheriff, and after some time, were again on the same day, *brought into Court, and declared that it was impossible for them to agree; and that thereupon the Court made the following order: “That the Court declared it as its conviction, that there was no possibility of the said jury rendering a verdict during the term, and that the further detaining them would be a hardship upon them, and would not promote public justice, nor benefit the accused.” Where.upon it was ordered by the Court that the said jury be discharged, and he (the petitioner) again remanded to jail; to which order, discharging the jury, the petitioner objected.

The writ has been awarded by this Court, and the same is returned, together with the /return thereon, and the body of the petitioner.

It appears from the return and the record of the said case, which is made a part of the return, that the facts set forth in the said petition are true, and that the said petitioner is detained in custody for no other cause.

The question presented for the consideration of the Court, is, whether the Court, in a case of felony, can properly discharge the jury who are sworn in the case, without the consent of the accused, merely because the jury cannot agree? We think the Courts have not, and ought not to have such power. No such practice has ever prevailed in Virginia ; and so far as the Judges now composing this Court are informed, this is the first instance in which it has ever been done or attempted. In looking to England, we do not find such power to have been exercised or claimed there. In looking to our sister States, we find the practice has varied ;■ in some of them, to wit, in New York and Massachusetts the Courts have claimed and exercised this power. See the cases of Olcot, 2 John. Cas. 301; Goodwin’s Case, 18 John. R. 187, and Green’s Case, 13 Wend. R. 55; Barden’s Case, 9 Mass. R. 467; Purchase’s Case, 2 Pick. R. 521. In Pennsylvania, the Judges have denied *the power. See the cases of Cook and others, 6 Serg. & Rawle 577; and Clue’s Case, 3 Rawle 498.

We incline to the views and reasoning of the Courts of Pennsylvania on this important question.

This Court, in the case of “The Commonwealth v. Fells,” 9 Leigh 613, decided, that the Court might properly discharge the jury in a case of felony, wherever a necessity for so doing existed: and cited as authority the case of Ann Scalbert, Leach’s C. L. 620; Rex v. Stevenson, Id. 546; and The King v. Edwards, 4 Taunt. R. 309. In the case of Ann Scalbert, after the jury were sworn, one of them fell down in a ' fit. In the case of The King v. Stevenson, the prisoner himself became suddenly ill, and unable to attend to his defence. In the case of The King v. Edwards, one of the jury became ill and unable to attend to the examination of the case. In Fell’s Case, the jury had been kept together nine days; the health of one of the jurors was suffering materially from the long confinement ; and the personal attentions of another juror were required by his wife; whose peculiar and delicate situation rendered it proper and necessary. In that case, the Judge before whom the case was tried, discharged the jury; and this Court affirmed the decision, and decided that the facts of that case shewed a case of necessity, which rendered the discharge proper. But while we approve that decision, we think that mere inability on the part of the jury to agree, presents no such case of necessity. We think, moreover, the exercise of such a power or discretion ought not to be allowed: that the accused is entitled to be tried by the jury he has selected in the first instance, unless there be some imperious necessity for their discharge; in which event another jury may properly be sworn to try him. The practice in Virginia has been, in the case of a hung jury in a trial for felony, either to adjourn the Court at the end of the term, taking no notice of the jury; in which case they are necessarily ^discharged by operation of law, or else to call the jury in and discharge them simultaneously with the final adjournment of the Court: which practices this Court approve and think right.

The Court are unanimously of opinion, that the petitioner, for the reasons stated, is entitled to his discharge; and do so decide.

The prisoner discharged.  