By the Court, W. F. Allen, J.
The objection upon which the plaintiff in error relies to the further prosecution of the indictment was not necessarily taken by plea, but might have been taken by way of exception to a second trial or by, a motion in arrest of judgment; and as there has been no technical trial resulting in a verdict and judgment, on which a plea of autrefois acquit or convict can be based, it may be doubtful whether the objection can be taken by plea. It might also have been objected that the record showing merely a decision of the demurrer by the court below without a judgment upon the whole record, there was nothing before us for review upon this writ of error. But no question of form was made in the court of Sessions, and none is, made here, but both parties desire an adjudication upon the question intended to be made [681] without regard to the form in which it was presented below or is brought before us.
The. real question is, whether it is allowable for a public prosecutor after having entered upon his case by the giving of evidence to a jury impanneled for the trial of an indictment, to withdraw a juror and thus arrest the trial so as to enable him to try the party at a subsequent time, solely because he finds himself unprepared with the proper evidence to convict where his condition is not the result of improper practice on the part of the defendant, or some one acting with and for him or some overruling inevitable necessity.
The counsel for the people appeared by the course of his very able argument, to suppose that the objections taken by the accused to a second trial rested entirely upon the constitutional provision, that “ no person shall be subject to be twice put in jeopardy for the same offence.” (Art. 1, § 6,) and if he is right in his premises, he is clearly right in his conclusion that there was no valid objection to proceeding with the trial of this indictment a second time. The judicial interpretation of a corresponding provision in the constitution of the United States is, that it prohibits a second trial of a party for the same offence, after he has been once convicted or acquitted by the verdict of a jury, and judgment has passed thereon for or against him, and it does not mean that he shall not be tried a second time if the jury have been discharged without giving any verdict, or judgment has been arrested. (Story’s Com. on Const. § 1781, U. S. v. Perez, 9 Wheat. 579.) The state constitution of 1821, was in words a transcript of the provision of the constitution of the United States as follows: “ No person shall be subject for the same offence to be twice put in jeopardy of life and limb,” and was construed to include within its terms all felonies and capital offences. The only departure from this formula in the constitution of 1846 is in the omission of the limitation confining the prohibition to offences involving the life or limb of the accused. “ Jeopardy of limb,” in the former construction referred to offences denominated in the law felonies, [682] (Per Spencer, Ch. J., People v. Goodwin, 18 J. R. 201,) and whether the present constitution includes parties charged with misdemeanors within the protection of this provision need not be considered.
To the extent of the provision referred to, the constitution, is but declaratory of the common law, which declared that no man should be twice convicted or twice put in peril of legal penalties for the same offence, and no man could be said to be within the protection of this rule unless he could sustain a plea of autrefois acquit or convict. (Broome’s Legal Maxims, 137; Bouvier’sLaw Dict., tit. “ Jeopardy.”) The civil law contains the same prohibition in the maxim ,“ Mon bis in idem,” and a party once tried and either convicted or acquitted, can not be again tried. The plaintiff in error has not been once tried so as to bring himself within the constitutional protection, as no verdict or judgment has been given. The true ground of the objection lies back of the constitution, and-is found in the principles which have been deemed essential to the full and fair protection of individuals accused of crime, and to secure to them a speedy and impartial trial, and the best means of indicating their innocence. The practice and the views of courts of criminal jurisdiction upon questions somewhat analogous to that presented in this case, have passed through some modifications. Kent, J., in People v. Olcott, (2 J. C. 301,) refers in detail to the earlier cases bearing upon the point, and while his review of the cases shows distinctly the modification and changes which have taken place in the practice of courts, it also shows the great tenderness and care manifested by the judges for the rights of the accused and to secure to them every right essential to their defence, and an anxiety to protect them against any act or omission of the government or the public prosecutor which could injuriously affect them. They have felt at liberty to interfere and arrest a trial and dispense with a verdict from a jury once empanneled only when compelled to do so by some necessity or by some improper arid fraudulent act of the accused, which would or might interfere and prevent a full and fair trial or impartial ve diet. "Lord Coke says: “ A jury sworn [683] and charged in case of life or murder, can not be discharged by the court or any other, but they ought to give a verdict.” (Coke Lit. 227, b.; 3 Thomas Coke, 495.) Blackstone modifies the proposition and says: “ When any evidence hath been given the jury can not be discharged (unless in cases of evident necessity) till they have given in their verdict.” (4 Black. Com. 360.)
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By the Court, W. F. Allen, J.
The objection upon which the plaintiff in error relies to the further prosecution of the indictment was not necessarily taken by plea, but might have been taken by way of exception to a second trial or by, a motion in arrest of judgment; and as there has been no technical trial resulting in a verdict and judgment, on which a plea of autrefois acquit or convict can be based, it may be doubtful whether the objection can be taken by plea. It might also have been objected that the record showing merely a decision of the demurrer by the court below without a judgment upon the whole record, there was nothing before us for review upon this writ of error. But no question of form was made in the court of Sessions, and none is, made here, but both parties desire an adjudication upon the question intended to be made [681] without regard to the form in which it was presented below or is brought before us.
The. real question is, whether it is allowable for a public prosecutor after having entered upon his case by the giving of evidence to a jury impanneled for the trial of an indictment, to withdraw a juror and thus arrest the trial so as to enable him to try the party at a subsequent time, solely because he finds himself unprepared with the proper evidence to convict where his condition is not the result of improper practice on the part of the defendant, or some one acting with and for him or some overruling inevitable necessity.
The counsel for the people appeared by the course of his very able argument, to suppose that the objections taken by the accused to a second trial rested entirely upon the constitutional provision, that “ no person shall be subject to be twice put in jeopardy for the same offence.” (Art. 1, § 6,) and if he is right in his premises, he is clearly right in his conclusion that there was no valid objection to proceeding with the trial of this indictment a second time. The judicial interpretation of a corresponding provision in the constitution of the United States is, that it prohibits a second trial of a party for the same offence, after he has been once convicted or acquitted by the verdict of a jury, and judgment has passed thereon for or against him, and it does not mean that he shall not be tried a second time if the jury have been discharged without giving any verdict, or judgment has been arrested. (Story’s Com. on Const. § 1781, U. S. v. Perez, 9 Wheat. 579.) The state constitution of 1821, was in words a transcript of the provision of the constitution of the United States as follows: “ No person shall be subject for the same offence to be twice put in jeopardy of life and limb,” and was construed to include within its terms all felonies and capital offences. The only departure from this formula in the constitution of 1846 is in the omission of the limitation confining the prohibition to offences involving the life or limb of the accused. “ Jeopardy of limb,” in the former construction referred to offences denominated in the law felonies, [682] (Per Spencer, Ch. J., People v. Goodwin, 18 J. R. 201,) and whether the present constitution includes parties charged with misdemeanors within the protection of this provision need not be considered.
To the extent of the provision referred to, the constitution, is but declaratory of the common law, which declared that no man should be twice convicted or twice put in peril of legal penalties for the same offence, and no man could be said to be within the protection of this rule unless he could sustain a plea of autrefois acquit or convict. (Broome’s Legal Maxims, 137; Bouvier’sLaw Dict., tit. “ Jeopardy.”) The civil law contains the same prohibition in the maxim ,“ Mon bis in idem,” and a party once tried and either convicted or acquitted, can not be again tried. The plaintiff in error has not been once tried so as to bring himself within the constitutional protection, as no verdict or judgment has been given. The true ground of the objection lies back of the constitution, and-is found in the principles which have been deemed essential to the full and fair protection of individuals accused of crime, and to secure to them a speedy and impartial trial, and the best means of indicating their innocence. The practice and the views of courts of criminal jurisdiction upon questions somewhat analogous to that presented in this case, have passed through some modifications. Kent, J., in People v. Olcott, (2 J. C. 301,) refers in detail to the earlier cases bearing upon the point, and while his review of the cases shows distinctly the modification and changes which have taken place in the practice of courts, it also shows the great tenderness and care manifested by the judges for the rights of the accused and to secure to them every right essential to their defence, and an anxiety to protect them against any act or omission of the government or the public prosecutor which could injuriously affect them. They have felt at liberty to interfere and arrest a trial and dispense with a verdict from a jury once empanneled only when compelled to do so by some necessity or by some improper arid fraudulent act of the accused, which would or might interfere and prevent a full and fair trial or impartial ve diet. "Lord Coke says: “ A jury sworn [683] and charged in case of life or murder, can not be discharged by the court or any other, but they ought to give a verdict.” (Coke Lit. 227, b.; 3 Thomas Coke, 495.) Blackstone modifies the proposition and says: “ When any evidence hath been given the jury can not be discharged (unless in cases of evident necessity) till they have given in their verdict.” (4 Black. Com. 360.)
One case of necessity now recognized and admitted for the discharge of a jury upon a criminal trial is their inability to agree upon a verdict, and therefore it is held that a discharge for that reason will not preclude a second trial, and the court will not, upon a second trial, review the decision of the first as to the existence of th& cause in the particular case under the circumstances attending it. Doubts were at one time entertained whether this discretion existed in capital cases, but it is now conceded in all cases to the same extent as in civil actions, (See People v. Denton, 2 J. R. 275; People v Olcott, 2 J. C. 301; People v. Goodwin, 18 J. R. 187; People v. Green, 13 W. R. 55.) The People v. Olcott was a case of disagreement of the jury, and the decision of the court goes no farther than to hold that a- discharge of the jury for that reason did not prevent another trial. In this case, Kent, J., approves the decision of Ch. J. Holt, in the case of the two Kinlocks (Foster, 27,) refusing to allow the prosecutor on finding his evidence defective to withdraw a juror and says this “ was properly deemed an unreasonable and oppressive claim on the part of the prosecutor.” In the United States v. Perez, (9 Wheat. 579,) it was held proper to discharge a jury because they were unable to agree in a capital case. Judge Story says the power may be exercised whenever in the opinion of the court, “ taking all the circumstances into consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be defeated.” In the People v. Goodwin, Spencer, Ch. J., says: “ Upon full consideration I am of opinion that although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in cases of extreme and absolute necessity, and that it may be exercised without operating as an acquittal of the defendant;” and he applies the principle to a [684] case of a disagreement after a faithful and protracted effort to agree, but he also says: “ I entirely concur in reprobating the proceeding of withdrawing a juror and subjecting a person to a second trial because the public prosecutor was not prepared for trial,” and he approves the decision in People v. Barrett, (2 Caines, 304.) In the People v. Green, (13 W. R. 55,) Savage, Ch. J., refers to the case of Barrett, and does not dissent from the principle then decided, that the discharge of a jury, because the public prosecutor was not prepared with his testimony, was equivolent to an acquittal. In the People v. Ellis, (15 W. R. 371,) the rule appears to be somewhat relaxed in the case of a misdemeanor upon the reasoning of the court in Goodwin’s case. Whether even this modification was well considered or whether it should be unhesitatingly adopted, may be questionable, but the learned justice pronouncing the opinion recognizes the rule in Barrett’s case, as applicable to felonies.’ The case of the United States v. Coolidge, (2 Gall. 364,) decides that the court may discharge a jury when a witness present at the trial refuses to be sworn. Such proceeding is necessary to prevent a failure of justice, and the necessity has not been induced by any laches or want of vigilance or mistake on the part of the prosecutor. The People v. Barrett has never been questioned and is decisive of this case, expressly denying as it does, after a very full argument and careful consideration the right of the court to discharge a jury because the public prosecutor is unprepared with his evidence, and holding that such discharge is equivalent to an acquittal of the defendant. Livingston, J., says: “ To discharge a juror under such circumstances would be liable to great abuse and oppression,” and the reasons why the rule should be as declared in that case are very briefly and clearly stated by the learned judge. See also 2 Russell on Crimes, 970, in which it is said upon the authority of Rex v. Wade, (R. & M. C. C. 86,) that if a jury are sworn, and the prisoner is put upon his trial before the incompetency of a witness of tender years for want of proper instruction is discovered, although it would have been cause for putting off the trial to give an opportunity to instruct the witness, the judge [685] can not discharge the jury, but should direct an acquittal. (See 2 C. & H. Notes, 1st ed., p. 953, in note 692.) I have met with no case in which it is intimated that a juror maybe withdrawn and a criminal trial arrested, merely because the prosecutor is unprepared with his evidence or has mistaken his case or the character of the evidence required to support it, but judges have carefully excluded this from the list of cases in which a jury may be discharged. In the case before us, if the decision of the court upon the first trial was right in excluding the eyidence offered by the district attorney, it xyas simply a misapprehension of the rules of evidence,by the prosecutor, and.the result was the. want of the proper preparation for trial, and this without fault on the part of the accused5 and if allowable in, such a case to withdraw a juror, it is difficult, tp say in what case it may not be done if the prosecutor finds himself unable to convict, but can satisfy the court that there is further evidence within his reach and which may produce a conviction, and the trial of an indictment may come to be but little more than a series of experiments on the part of the prosecution at the expense of the accused. It is but proper to say that the ruling of the. court upon the offered, evidence was erroneous, but that does not alter the principle. The law does not give a right of review on criminal trials to the people, and the district attorney can not indirectly accomplish what is directly forbidden, and least of all can he be allowed, upon an adverse decision, to arrest the trial with a view to a more favorable decision at another term or before another tribunal. The counsel for the people in a very ingenious argument sought to.bring this case within that of People v. Ellis, by making it a misdemeanor, and insisting that at common law it was a misdemeanor, and that, as it' was not denominated a felony by the statute, it was not made such by any provision of law. . Perhaps upon a very literal and technical construction of the statute defining a felony, (2 R. S. 702, § 30,) he may be right. But the intent was to do away with the common law definition of felony as entirely inapplicable, and to substitute one which should have significance and be readily understood. (R. Notes, 3 R. S. 836.) I think that [686] the clear intendment and proper meaning of the statute is to declare all crimes (not expressly denominated misdemeanors by statutes creating them) which are punishable by imprisonment in the state prison, to be felonies. This has been the judicial interpretation of the provision and the decisions accord with the intent of the framers and the general understanding of the profession. (Andrew v. Dutrick, 14 W. R. 31; Malcom v. Lorrendge, 13 Barb. 372; Robinson v. Dauchy, 3 id. 20.)