
    * Commonwealth versus John Bowden.
    Upon a trial for robbery, the jury, after being long out, returned into Court, not having agreed on a verdict, and saying that it was not probable they ever could agree; a juror was withdrawn without the prisoner’s consent, and the jury being discharged, he was afterwards tried and convicted by another jury, and it was holden a good conviction.
    Indictment for a highway robbery, to which the defendant pleaded not guilty, and a jury was empanelled at the last November term in this county, for his trial; who, after a full hearing of the cause, and being confined together during part of a day and a whole night, returned into Court, and informed the sitting judge that they had not agreed on a verdict, and that it was not probable that they ever could agree. Whereupon, one of the jurors was withdrawn from the panel, without the defendant’s consent, and the jury were discharged of the prisoner, and he was remanded to prison. Afterwards, in the same term, another jury was empanelled for his trial, who returned a verdict that the. defendant was guilty. Whereupon he moved that judgment on the verdict should be arrested for the cause aforesaid ; and the indictment stood continued to this terpi for the consideration of the said motion.
    And now, D. W. Lincoln, in support of the motion, contended that a jury sworn and charged with a criminal cannot be discharged, in a capital case, even with the consent of the prisoner; nor in any criminal case without such consent. 
    
    
      Davis, (Solicitor-General,)
    for the commonwealth, observed that there was much uncertainty and variance among the old law writers upon this point. But there are many instances where juries, in criminal cases not capital, have been discharged by the inherent authority of the Court; sometimes exercised from the inevitable necessity of the circumstances, but always held to be within the legal discretion of the Court. It is easy to imagine many cases of absolute necessity. And even in the case at bar, no alternative was left, but of withdrawing a juror, or keeping the whole jury imprisoned for an indefinite period. 
    
    
      
      
        Co. Lit. 227. — Foster, C. L. 24. — Strange, 927. — Carth. 465, Rex vs. Perkins.
      
    
    
      
      
        T. Raym. 84. — Vent. 69. — Kelynge, 25, 47, 52. — 2 Hale’s P. C. 295. — Foster, 34, 38, 76. — 2 St. Trials, 831, Rex vs. Whitbread.
      
    
   * By the Court.

The ancient strictness of the law upon this subject has very much abated in the English courts; nor would it be consistent with the genius of our government or laws to use compulsory means to effect an agreement among jurors. The practice of withdrawing a juror, where there existed no prospect of a verdict, has frequently been adopted at criminal trials in this Court, and the exception taken in this case cannot prevail.

The defendant took nothing by his motion.  