Bowie, O. J.,
delivered the opinion of this Court:
The plaintiff in error being indicted for murder, jointly with one Robert Miller, by tbe grand jurors of the State of [430]*430Maryland, for the City of Baltimore, and being arraigned, severed in his defence, and pleaded not guilty. On the 25th of October 1859, a jury was empannelled and sworn. The State’s witnesses being- called did not answer; attachments were issued and the Oourt was adjourned to the 26th of October 1859. The attachments being returned non est, the following proceedings were entered of record: “And. after-wards, to wit: on the said 26th day of October, in the year 1859, because it appears to the said Court here, that after the said jury had been sworn, and the above indictment had been read to them, and they had been charged in the usual way by the cleric of the Court here, several witnesses for the State who had been in attendance up to that period, had been discovered, to be absent, and that after adjournment to the next day, the said witnesses were still absent, which said witnesses had been duly summoned and put under security for their presence in Court upon the trial of the case, and attachments against them having been issued and returned ‘non est,’ no statement having been made or evidence offered to the jury in the said case, therefore, by order of the said Court here, the said jury are discharged, and are wholly discharged from giving any verdict of and upon the premises above mentioned in the said case of the said Thomas Hoffman, the said Thomas Hoffman by his attorney objecting to the said discharge of the jury aforesaid.”
Whereupon the counsel of the plaintiff in error moved the Court to discharge him from imprisonment for the following reasons:
First. Because heretofore, to wit: on the 25th. day of October 1859, he was put upon trial under said indictment, and a jury was regularly sworn and charged to try said case, as will appear by tlie records of this Court; and he cannot be put twice in jeopardy of life for same alleged offence.
Second. Because heretofore, on the 25th of October 1859, he was put upon trial under said indictment, and a jury was regularly sworn and charged, to try said case, and said jury was afterwards, on the 26th of October 1859, dis[431]*431charged by order of the Court, but against the consent of this prisoner, as will appear by the records of this Court; and he cannot, for the same alleged offence, be twice put in jeopardy of life.
Third. Because heretofore, on the 25th of October 1859, this prisoner was put upon trial in this Court, and a jury regularly sworn and charged, to try his said case; and afterwards, and without his consent, said jury was discharged, by order of the Court, before they had agreed upon a verdict, as will appear by the records of this Court, and be cannot be put again upon trial for the same alleged offence.
Fourth. Because heretofore, on the 25th of October 1859, this prisoner after having been arraigned, and after having pleaded not guilty to said indictment, was put upon trial in this Court, and a jury was regularly sworn and charged, in due form of law, to try his said case, and after said jury was sworn and charged, but before they had agreed upon a verdict, they were discharged by order of the Court, against the consent of this prisoner, and without any lawful necessity; wherefore he says that he cannot again be put upon trial for the same alleged offence.
Fifth. Because heretofore, on the 25th of October 1859, this prisoner, after arraignment under said indictment, and after having pleaded not guilty to the same, was put upon trial upon said indictment, and a jury was regularly sworn and charged in due form of law, to try said case; and alter said jury bad been so sworn and charged, hut before they had agreed upon a verdict, they were discharged by order of the Court, against the consent of this prisoner, and without any absolute necessity, as will appear by the records of this Court; wherefore he is advised that be cannot be again put in jeopardy of bis life for the same alleged offence; and prays that an order may be passed for his discharge from further imprisonment under said indictment.
Which motion was over-ruled and the prisoner after continuing the cause to a subsequent term, was again brought [432]*432to the har, a jury empannelled and sworn, and a verdict of guilty of murder in the second degree rendered and recorded. Judgment and sentence having been passed, the prisoner prayed a writ of error.
The reasons assigned in support of the motion to discharge, involve the proposition, that after a jury has been empannelled in a criminal case and charged with the prisoner, they cannot, 'in this State, be discharged against the consent of the prisoner without some physical necessity or act of God. The motion is based upon a clause of Art. 5th of amendments to the Constitution of the United States, which provides, "Nor shall any person bo subject for the same offence, to be twice put in jeopardy of life or limb.” Every right guaranteed to a prisoner by the Constitution and laws, should be jealously guarded and scrupulously observed by the Courts.
The importance and value of the principle on which the motion to discharge is founded in this case, is shown in the fact, that although handed down by the common law for centuries, and recognized in innumerable instances, it was thought proper to embody it in the Constitutions of several of the States, and engraft it, by way of amendment, on that of the United States.
If this were a question of first impression, grave doubts might be entertained as to its proper solution. The constitutional prohibition, interpreted in its popular sense, would seem to bear the construction put upon similar provisions, in Pennsylvania, North Carolina, Tennessee and Alabama, in the cases cited by the plaintiff in error. Chief Justice Gibson’s language, in 3 Raw., 498, is a forcible expression of his opinion of the meaning conveyed by the words "twice put in jeopardy of life or limb.” "In the legal, as well as the popular sense,” says that learned judge, "he is in jeopardy the instant he is called to stand on his defence, for from that instant every movement of the commonwealth is an attack upon his life.” But these terms "twice in jeopardy” have'a technical meaning, as a maxim of the [433]*433common law they had acquired long anterior to their incorporation into the Federal Constitution, a certain and fixed sense. In the decisions of tho English Courts ante ■ cedent to the Constitution, they had been construed as equivalent to autre fois acquit’’ or “autre fois convict.” Cotemporaneous construction is the true interpreter of language. Being transformed from a legal maxim to a constitutional clause, does not, it is apprehended, change the meaning of words, although it makes the right they guaranty, more solemn and sacred. In this State there has been no judicial interpretation of these terms by the Court of last resort. The ease in 8 Gill, of Price vs. The Stale, was a question of venue; whether tho right to change it was lost by the stage to which, the cause bad advanced, and there it was held, the trial was not commenced until the jury was sworn, in several of our sister States, and in the Circuit and Supreme Court of United States, this question has been frequently adjudicated. The cases are collated in the excellent elementary treatise of Wharton on Crim. Law,
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Bowie, O. J.,
delivered the opinion of this Court:
The plaintiff in error being indicted for murder, jointly with one Robert Miller, by tbe grand jurors of the State of [430]*430Maryland, for the City of Baltimore, and being arraigned, severed in his defence, and pleaded not guilty. On the 25th of October 1859, a jury was empannelled and sworn. The State’s witnesses being- called did not answer; attachments were issued and the Oourt was adjourned to the 26th of October 1859. The attachments being returned non est, the following proceedings were entered of record: “And. after-wards, to wit: on the said 26th day of October, in the year 1859, because it appears to the said Court here, that after the said jury had been sworn, and the above indictment had been read to them, and they had been charged in the usual way by the cleric of the Court here, several witnesses for the State who had been in attendance up to that period, had been discovered, to be absent, and that after adjournment to the next day, the said witnesses were still absent, which said witnesses had been duly summoned and put under security for their presence in Court upon the trial of the case, and attachments against them having been issued and returned ‘non est,’ no statement having been made or evidence offered to the jury in the said case, therefore, by order of the said Court here, the said jury are discharged, and are wholly discharged from giving any verdict of and upon the premises above mentioned in the said case of the said Thomas Hoffman, the said Thomas Hoffman by his attorney objecting to the said discharge of the jury aforesaid.”
Whereupon the counsel of the plaintiff in error moved the Court to discharge him from imprisonment for the following reasons:
First. Because heretofore, to wit: on the 25th. day of October 1859, he was put upon trial under said indictment, and a jury was regularly sworn and charged to try said case, as will appear by tlie records of this Court; and he cannot be put twice in jeopardy of life for same alleged offence.
Second. Because heretofore, on the 25th of October 1859, he was put upon trial under said indictment, and a jury was regularly sworn and charged, to try said case, and said jury was afterwards, on the 26th of October 1859, dis[431]*431charged by order of the Court, but against the consent of this prisoner, as will appear by the records of this Court; and he cannot, for the same alleged offence, be twice put in jeopardy of life.
Third. Because heretofore, on the 25th of October 1859, this prisoner was put upon trial in this Court, and a jury regularly sworn and charged, to try his said case; and afterwards, and without his consent, said jury was discharged, by order of the Court, before they had agreed upon a verdict, as will appear by the records of this Court, and be cannot be put again upon trial for the same alleged offence.
Fourth. Because heretofore, on the 25th of October 1859, this prisoner after having been arraigned, and after having pleaded not guilty to said indictment, was put upon trial in this Court, and a jury was regularly sworn and charged, in due form of law, to try his said case, and after said jury was sworn and charged, but before they had agreed upon a verdict, they were discharged by order of the Court, against the consent of this prisoner, and without any lawful necessity; wherefore he says that he cannot again be put upon trial for the same alleged offence.
Fifth. Because heretofore, on the 25th of October 1859, this prisoner, after arraignment under said indictment, and after having pleaded not guilty to the same, was put upon trial upon said indictment, and a jury was regularly sworn and charged in due form of law, to try said case; and alter said jury bad been so sworn and charged, hut before they had agreed upon a verdict, they were discharged by order of the Court, against the consent of this prisoner, and without any absolute necessity, as will appear by the records of this Court; wherefore he is advised that be cannot be again put in jeopardy of bis life for the same alleged offence; and prays that an order may be passed for his discharge from further imprisonment under said indictment.
Which motion was over-ruled and the prisoner after continuing the cause to a subsequent term, was again brought [432]*432to the har, a jury empannelled and sworn, and a verdict of guilty of murder in the second degree rendered and recorded. Judgment and sentence having been passed, the prisoner prayed a writ of error.
The reasons assigned in support of the motion to discharge, involve the proposition, that after a jury has been empannelled in a criminal case and charged with the prisoner, they cannot, 'in this State, be discharged against the consent of the prisoner without some physical necessity or act of God. The motion is based upon a clause of Art. 5th of amendments to the Constitution of the United States, which provides, "Nor shall any person bo subject for the same offence, to be twice put in jeopardy of life or limb.” Every right guaranteed to a prisoner by the Constitution and laws, should be jealously guarded and scrupulously observed by the Courts.
The importance and value of the principle on which the motion to discharge is founded in this case, is shown in the fact, that although handed down by the common law for centuries, and recognized in innumerable instances, it was thought proper to embody it in the Constitutions of several of the States, and engraft it, by way of amendment, on that of the United States.
If this were a question of first impression, grave doubts might be entertained as to its proper solution. The constitutional prohibition, interpreted in its popular sense, would seem to bear the construction put upon similar provisions, in Pennsylvania, North Carolina, Tennessee and Alabama, in the cases cited by the plaintiff in error. Chief Justice Gibson’s language, in 3 Raw., 498, is a forcible expression of his opinion of the meaning conveyed by the words "twice put in jeopardy of life or limb.” "In the legal, as well as the popular sense,” says that learned judge, "he is in jeopardy the instant he is called to stand on his defence, for from that instant every movement of the commonwealth is an attack upon his life.” But these terms "twice in jeopardy” have'a technical meaning, as a maxim of the [433]*433common law they had acquired long anterior to their incorporation into the Federal Constitution, a certain and fixed sense. In the decisions of tho English Courts ante ■ cedent to the Constitution, they had been construed as equivalent to autre fois acquit’’ or “autre fois convict.” Cotemporaneous construction is the true interpreter of language. Being transformed from a legal maxim to a constitutional clause, does not, it is apprehended, change the meaning of words, although it makes the right they guaranty, more solemn and sacred. In this State there has been no judicial interpretation of these terms by the Court of last resort. The ease in 8 Gill, of Price vs. The Stale, was a question of venue; whether tho right to change it was lost by the stage to which, the cause bad advanced, and there it was held, the trial was not commenced until the jury was sworn, in several of our sister States, and in the Circuit and Supreme Court of United States, this question has been frequently adjudicated. The cases are collated in the excellent elementary treatise of Wharton on Crim. Law, under the title “Once in Jeopardy.” It is there said: “In this country tho constitutional provision has, in some instances, been construed to mean more than the common law maxim, and in several of the States it has been bold, that where a jury in a capital case has been discharged without consent before verdict, the defendants under certain limitations, may bar a second prosecution by a special plea setting forth, tho fact, that his life has already been put In jeopardy for the same offence.
“The cases may be placed in two general classes:
First. Where any separation of the jury, except by consent, or in case of such violent necessity as may be considered the act of Clod, is held a bar io all subsequent proceedings.
Second. Where it is held that the discharge of the jury is a matter of pure discretion for the Court, and that when, in the exercise of a sound discretion, it takes place, it presents no impediment to a second trial. The first view has [434]*434been taken by the Courts of Pennsylvania, North Carolina, Tennessee and Alabama,” Wharton, 147.
After citing several cases from these States, the author proceeds:
“In each of the foregoing cases the opinion of the Court was founded on the assumption, that to be on trial twice, within the meaning of the Constitution, was to be in jeopardy. That such is not the case, but on the contrary, no man is in jeopardy until verdict rendered, has been held by the Supreme Court of the United States, by Washington, J., Story, J. and McLean, J., sitting in their several Circuits, and by the Courts of Massachusetts, New York and Mississippi.” Wharton Crim. Law, 150, citing United States vs. Perez, 9 Wheaton, 579. Com. vs. Bowden, 9 Mass., 194. Com. vs. Purchase, 2 Pick., 521 People vs. Goodwin, 18 John. Rep., 187. United States vs. Gilbert, Sumner, 19. United States vs. Shoemaker 2 McLean, 114. United States vs. Coolidge, 2 Gall., 364.
In the conflict of opinion between some of the State Courts and other State and Federal tribunals as to the construction of a clause of the Constitution of the United States, we feel constrained to conform to the decisions of those Courts, which were especially ordained and éstablished by it, and invested with authority to construe that instrument. Hence, we adopt the conclusion that the clause of the 5th Article of the Amendments of the Constitution of the United States, viz: “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” being “a maxim imbedded in the very elements of the common law,” and incorporated into that instrument, is properly interpreted by the authorised exposition established at its adoption. “At common law it meant nothing more than that where there had been a final verdict either of acquittal or conviction, on an adequate indictment, the defendant could not be a second time placed in jeopardy for the particular offence.” 147 Wharton’s Crim. Law, and cases there cited.
[435]*435(Decided Dec. 23rd, 1863.)
Guided by this rule, we are of opinion that the prisoner in this case, was not entitled to he discharged on the grounds and for the reasons alleged in the motion. He was not “for the same offence twice put in jeopardy of life or limb.”
But it has been argued by the counsel on behalf' of the plaintiff in error, that the first jury einpannelled for the trial of the prisoner had been discharged by the Criminal Court against his consent and without sufficient cause, and for that reason he ought not to have been brought to trial a second time. This raises the question whether it is competent for this Court upon a writ of error to review the action of an inferior Court in this respect, and to inquire into and decide upon the sufficiency of the reasons governing tlio inferior tribunal. A majority of this Court are of opinion that we have no such power, for the reason that it is a matter which rests entirely in the discretion of the Court exercising original jurisdiction, and therefore its action is not a subject of review upon writ of error.
In the case of the United States vs. Haskell & Francois, 4 Wash., C. C. R., 403, Washington, Justice, says: “We consider the authority of the Court to discharge the jury to rest on the sound discretion of the Court. If can rest no where else. It is merely an incidental matter arising in the progress of the trial in no way connected with the question before the jury of guilty or not guilty. It is an incidental matter depending upon circumstances appearing to the satisfaction of the Court, as requiring them in the proper administration of justice to discharge the jury. It is surely as much a matter of discretion as granting a new. trial after a verdict is rendered.” Sec also People vs. Green, 13 Wend., 56.
Writ of error dismissed.