October Term, 1795.
If the jury, in a capital case, separate without returning a verdict, the prisoner shall not be tried again for that offense.
THE prisoner had been indicted for murder, and put on his trial the last day of last term, and the jury, after the court had gone from the bench, but without adjourning, separated without giving any verdict; and now it was moved by the Attorney-General that he might be again put upon his trial, and he cited Kelyng, 42, 52; Foster, 27, 29, 76; H. H. P. C., 294, 295. E contra were cited H. P. C., verbo Verdict, c. 47, s. 1, p. 439, where it is said to have been held for law ever since the Revolution, that a jury cannot be discharged in a capital case without giving a verdict.
The rule as laid down in 3 Co. Inst., 110, and 1 Inst., 227, is general and without exception that a jury in a capital case cannot be discharged without giving a verdict. Afterwards, however, in the reigns of the latter sovereigns of the Stuart family, a different rule prevailed, that a jury in such case might be discharged for the purpose of having better evidence against him at a future day; and this power was exercised for the benefit of the crown only; but it is a doctrine so abhorrent to every principle of safety and security that it ought not to receive the least countenance in the courts of this country. In the time of James II., and since the Revolution, this doctrine came under examination, and the rule as laid down by my Lord Coke was revived with this addition, that a jury should not be discharged in a capital case unless for the benefit of the prisoner; as if the prisoner be a (242) woman and be taken in labor; or if the prisoner after the jury are charged with him be found to be insane, and the like; or if at the prisoner's request a jury be withdrawn to let him in to take the benefit of an exception, which otherwise he would have lost, as in the case of Foster. In the present case the jury were suffered by the court's officer to separate without giving a verdict. As they could not agree to convict, it is strong evidence of the party's innocence; and perhaps he could not be tried again with the same advantage to himself as then. Perhaps his witnesses are dead, or gone away, or their attendance not to be procured, or some accident may prevent their attendance. We will not again put his life in jeopardy, more especially as it is very improbable we shall be able to possess him of the same advantages.
So he was discharged.
Cited: In re Spier, 12 N.C. 495, 496, 503; S. v. Prince, 63 N.C. 530; S. v. McGimsey, 80 N.C. 379; S. v. Washington, 89 N.C. 538; S. v. Tyson, 138 N.C. 628.