
    The People of the State of New York ex rel. Walter Herbert, Respondent, v. John J. Hanley, Acting Warden of the City Prison of New York, Defendant. The People of the State of New York, Appellant.
    First Department,
    January 6, 1911.
    Trial — withdrawal of juror in criminal case — discretion of court — practice — method of review—habeas corpus.
    The trial court, in the exercise of a sound discretion, has power to declare a mistrial in a criminal case and to grant a motion by the prosecution to withdraw a juror, and to discharge the jury before the final submission of the issues to it, if in the opinion of the court matters have arisen during the trial which make such procedure advisable. . ■
    While the exercise of such power is open'to review it cannot be reviewed oma writ of habeas corpus- for the discharge of the defendant, as "he is still lawfully in custody.
    The sole manner in which the question can be tested is by a proper plea in bar upon a new trial and by appeal from a judgment of conviction, which will bring up for review the question as to whether the court was justified in permitting the withdrawal of a juror.
    Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the-clerk of the county of New York on the 20th day of July, 1910, sustaining a writ of habeas corpus and discharging the relator from custody.
    
      Frederick C. Tanner, Deputy Attorney-General, for the appellant.
    
      George Gordon Battle, for the respondent.
   Dowling, J.:

The relator, having been indicted for a violation of section 773 of the Penal Law, was- brought to trial on June 27,1910, at a Criminal Term of the Supreme Court, New York county. After the trial had progressed for two 'days, and on the morning of the third day, before the case had been submitted to the jury, information was laid before the justice presiding at the trial of certain actions upon the part of two of the jurors impaneled in the case. The justice thereupon called, before him, in his chambers, four witnesses who alleged that they liq.d seeii the acts complained of, and in the presence of the Attorney-General and of the attorney for the defendant, each of said witnesses was examined, the defendant’s attorney participating therein. As the result of what transpired at that examination, the justice was satisfied that there was danger of an interference with the orderly progress of the trial and he, therefore, upon returning to the court room granted a motion of the prosecution to withdraw a juror against the objection of the defendant’s.counsel. Thereafter a writ of habeas corpus was issued, under wdiich relator was discharged from custody by an order dated July 20, 1910, from which the present appeal is taken.

There can be no doubt as to the power of the trial court, in the exercise of a sound discretion, to declare a mistrial and to discharge the jury before the final subinission to them of the issues when, in the opinion of the court, matters have -arisen- during the course of the trial which make such procedure advisable. This is one of the ordinary powers resident in the court; and while the question of the proper exercise of such power is open to review, there is no question. made that the power, does exist. The remedy sought herein by writ of habeas corpus is not, however, the proper manner in .which to secure such review. It is sought to bring this case within the scope of the decision in People ex rel. Stabile v. Warden of City Prison (139 App. Div. 488), but there is no similarity between the- two cases. The decision in the case cited proceeded expressly upon the ground that the provisions of section 428 of the Code of Criminal Procedure, prescribing the method of discharge of a jury after they had retired to consider on their verdict, had not been complied with; and, therefore, when the jury were discharged by the trial justice before - they had announced their inability to agree, as required by that section, such improper discharge was in law the equivalent of an acquittal; there was then no lawful cause for a continued imprisonment of the relator based upon the original warrant, which had been issued upon the indictment. Here the condition of the trial was not such as to make the provisions of section 428 operative. So the general rule applied that if the jury in a criminal case is discharged, in the absence of circumstances rendering it proper for the court to exercise discretion in that behalf, it will operate as an acquittal of the defendant. (12 Cyc. 270; 17 Am. & Eng. Ency. of Law [2d ed.], 1261.) Since, therefore, the court has power to withdraw a juror and discharge the jury, the question of the proper exercise of its power cannot be raised by writs of habeas corpus, for the defendant is still lawfully in custody under a warrant issued upon an existing indictment. The sole manner in which the question can be tested is by a proper plea in bar upon a new trial; and should a judgment of conviction then be had an appeal from such judgment would bring up for review the question of whether or not the exercise of discretion of the court in permitting the withdrawal of a juror was justified, .upon the facts then before it..

The order appealed from must, therefore, be reversed, the writ dismissed, and the relator, remanded into custody.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, writ dismissed, and relator remanded into custody.  