
    The State vs. Brooks.
    I» The court have no power to discharge a jury, to which the case of a defendant has been submitted, without his consent, except in cases of manifest necessity.
    
      2. The disagreement of the jury up to the time at which the court is about to adjourn, is one case of such necessity, and authorizes the discharge of the jury.
    3. The circuit judge is alone competent to determine the fact of such necessity, and where the record alleged such necessity to exist, and there was no proof to the contrary, the determination of the circuit judge will be presumed to be correct.
    Madison Brooks was indicted at the September term, 1841, of tbc circuit court of Hardin county, for the murder of John Lowry, by shooting him with a rifle gun. The defendant pleaded not guilty to the indictment, and issue was taken thereupon.
    On Friday the 1st day of October, a jury was sworn to try the issue, and in an entry made of the proceedings of that day it appears, that “for want of sufficient time to consider, the jury were respited from rendering their verdict until to-morrow.”
    On Saturday, October 2d, it appears of record, that the jury “for want of sufficient time to deliberate, and not being able to agree, were respited from rendering their verdict until Monday morning.”
    On Monday the 4th, the jury were called in, and not being able to agree, it was entered of record as follows: “The jury who were sworn, &c. &c., do say upon their oaths, that they cannot agree, and this court having this day to adjourn to hold the circuit court of Wayne county, it is, therefore, considered by the court, that a mistrial be entered, and that the jury be discharged from the further consideration of the issue in this case.” “To which opinion of the court, in discharging the jury, the defendant excepts.”
    There was no bill of exceptions filed. The defendant was in accordance with an order of the court, remanded to jail, to await his trial at the next succeeding term.
    At the January term following, judge Totten presiding, the following appears of record:
    “This day came the defendant in proper person, and by his counsel moved the court to be discharged from this prosecution : and after argument by counsel, and mature deliberation by the court, and it appearing to the satisfaction of the court, that at the last term of this court, there was elected, em-pannelled and sworn a jury of good and lawful men to try the issue joined in this behalf, and that the jury charged with the deliverance of the defendant in this prosecution, was continued over until Monday, that day being the 4th day of October, when upon motion the jury aforesaid, empannelled as aforesaid, were by the court discharged without having agreed upon a verdict, to which discharge of the jury aforesaid, the defendant excepted. And it further appearing to the satisfaction of the court here, that there was one other entry made by order of said court, at the last term, after the discharge of the jury aforesaid, to wit, allowing a bill of costs for keeping the jury aforesaid in this behalf, and it not appearing that the discharge of the jury aforesaid, at the time thereof, at the last term of this court was from unavoidable necessity; It is, therefore, considered by the court, that the defendant be discharged and go hence without day, and that the State of Tennessee pay the costs of this prosecution on behalf of the State; from which judgment the Attorney General, on behalf of the State, prays an appeal in the nature of a writ of error to the next supreme court at Jackson.”
    
      Attorney General and Burrow, fbr the State,
    cited Martin & Yerg. 280: 10 Yerg. 582.
    
      McClanahan, for the defendant.
   Tueley, J.

delivered the opinion of the court.

Prisoner was indicted in the circuit court of Hardin, for the crime of murder. At the October term, 1841, he was put upon his trial. The jury not being able to agree, the case was continued over from day to day till the last day when the court remained in session, when they were discharged and a mistrial directed. It appears that this was the last order made by the court during the term, except one allowing a bill of cost for the jury during the trial. It is now contended that this discharge of the jury was an improper exercise of power by the court, and that the prisoner must be discharged, and so the circuit court decided. In the case of Mahula vs. The State, 10 Yerg. 582, this court held that there was no power to discharge a jury in criminal cases without the consent of the prisoner, except in cases of manifest necessity; but recognized the disagreement of the jury up to the time when the court was about to adjourn as the case of such necessity: that we think this case to be. The business of the court being finished, or the time having arrived for a term to be held at another place, a disagreeing jury may be discharged, anda mistrial entered without discharging the prisoner. Butit is said, by the 4th sec. of the act of 1835, ch. 5, it is provided, that the court shall sit till the business be dispatched, unless the judge holding the same shall be sooner compelled to leave the court in order to arrive in time at the next succeeding court of the circuit; and that in no case after the trial of a cause is commenced shall the judge adjourn the court until the case is tried, except in cases when the jury cannot agree, or for some other cause a mistrial may be ordered.

We do not think this act can effect the present case, because the record shows there was another court to be held, and of the necessity of an adjournment of the court at Hardin for the purpose of so doing, the circuit judge was alone competent to determine ; and because the record shows that a mistrial had to be entered, because the jury could not agree upon a verdict.

Let the judgment be reversed, and the case remanded to Hardin for a trial upon its merits.  