GOLDTHWAITE, J.
— If the bill of exceptions, found in the record of this cause, can be considered by the court, it will be evident, when we recur to the decision of this court, in the case of the State vs Quesenberry, (3 Stewart & Porter, 308,) that the Circuit court ought to [201] have sustained the prisoner’s challenge to the jurors. In the case cited, the juror stated that he derived the information on which his opinion was founded, from a man in whose veracity he had implicit confidence, who said he received his information from one of the witnesses: an opinion, formed on such information, and expressed, was determined by this court, a cause ^sufficient to exclude a juror, if challenged. In this case: the juror challenged, had formed his opinion from conversations held with a juror, who had been empanneled on one of the juries, previously charged with the trial of the prisoner ; the information was consequently derived through the medium of witnesses, and the only distinction between the grade of information, is, that in the one case, the witnesses were sworn; in the other, they were not.
But the prisoner, can derive no benefit, before this court, from this opinion ; because we have no authority to review the decision of the Circuit court, or any point dehors the record; and no matter can be brought to our view by a bill of exceptions. The general assembly has prohibited the Circuit courts, from referring to the Supreme court, any question of law, arising in a criminal case, except it shall be novel and difficult — Aik. Dig. 257. The statute does not prescribe the manner in which a reference shall be made; but in the case of the State vs Prince, (3 Stewart & Porter, 253,) it was held, that this court ought not to be particular as to the mode, if it clearly appear by the record, that a reference was intended. The contrary, is made directly to appear, as\ the judge states, in the exception, that he has signed it as a bill of exceptions, and does not intend it as a reserva[202] tion of points under the statute. It is clear, that a bill of exceptions was unknown to the common law, and it is alone by virtue of the statute, that the right exists in civil cases. Our statute is not materially different from the English act of parliament, or from the statutes of our sister States, and it is unnecessary to go into an examination of a question which has so often been settled—Rex vs Sir HarryVane (1 Levins, 68;) Rex vs Inhabitants of Preston, (cases Temp. Hard. 251, S. C.) 2 Strange, 1040; Bacon's Ab. vol. 1, 528; 2 Hawk. P. C. ch. 46, s. 128; United States vs Gibert, et al, (2 Sumner,) 19; People vs Holbrook, (13 John. R. 90.)
We must not, however, he understood as deciding, that the decision of the Circuit court, on a challenge, may not be places! on the record, without a hill of exceptions. £g is stated in Bacon's Abr. 766, that if a challenge is demurred to and overruled, it is entered on the original record: and if at nisi prius, it appears on the postea what the judge has done. Whether this method is the proper course to he pursued, is not a question now before us. A very important subject of consideration is presented by those assignments of error, which question the existence of any authority in the Circuit court to discharge a jury under the circumstances disclosed hy this record. If the discharge of either jury was irregular, and not warranted by law, we are then called on to declare what are the consequences which must ensue, so far as the prisoner is concerned.
( The ancient authorities on criminal law, announce the general rule, “ that a jury once sworn and charged in a case affecting life or member, cannot he discharged without giving a verdict.” f
[203] ( Lord Coke says, in his third institute, (pp. 110,) “ To speak it here, once for all, if any person be indicted of treason, or of felony or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must he heard, and they cannot he discharged.” Again, in the first institute, (pp. 227, h.) he observes, “ a jury sworñ and charged in case of life or member, cannot be discharged by the court or any other, but they ought to give a verdict.”
In Ero. Abr. (tit. verdict pi. 49,) it is said, “ a verdict de Xi ou le xii, ne vdpi agree esi void verdict: et per curiam, les justices duissot aver eux carry in carles eve eux icmq. ils sera agree”
In Rex vs Ledingham, (1 Tent. 97,) it was determined, “ that in cases of life and member, if the jury cannot agree before the judges depart, they are to be carried in carts after them, so they may give their verdict out of the county.” / The rule, as stated by Lord Coke, has frequently been questioned by the English courts, on account of its apparent exclusion of cases of consent and necessity ; but its soundness, as a general rule, has always been admitted by them. Many exceptions have been established by adjudication, some of which will he hereafter noticed. ^ Hawkins, whose excellence as a compiler, has never been questioned, says, “ it seems to have# been anciently an uncontrovcrted rule, and hath bcenf allowed even by those of a contrary opinion, to have been the general tradition of the law, that a jury once sworn and charged in a capital case, cannot be discharged (without the prisoner’s consent,) till they have given a verdict. And notwithstanding some authorities to the [204] contrary, in the reign of King Charles the Second, this hath been holden for clear law, both in the reign of King James the Second, and since the revolution — 2 Hawk. P. C. ch. 47, s. 1. At a much later period, and. when we might reasonably suppose this subject must have been repeatedly discussed and settled by the courts, we find Blackstone thus stating the rule: £ When the evidence on both sides is closed, and indeed when any evidence hath been given, the fury cannot be discharged (unless in cases of evident necessity,) till they have given in their verdict” — 4 Black. Com. 360. J
Lord Hale does not state any general rule, but he adverts to the custom of carrying juries who did not agree, around the circuit, and says, this must be done—(2 Hale’s P. C. 297.) A practice wholly inconsistent with the' existence of a discretionary power to discharge a jury. We are not to suppose that jurors were transported from county to county in a cart, as a mark of -ignominy and disgrace, or as a punishment for their contumacy in refusing to agree, it is highly inconsistent, to imagine that a people, who, under all changes of government, during a period of near one thousand years of authentic history, have clung to the trial by jury, as the great ( means of preserving their liberties ijrom the oppression of those in power, would ever acgui-s^íTin a practice, well calculated to bring the institution itself into contempt ; but, on the contrary, we are, I think, compelled to arrive at the conclusión, that this custom arose from a jealous regard for the- preservation of the right of trial by jury ; and from'a defect of power in the courts to abridge this right, or to lay down any new rules as to its [205] exercise. The custom, as •well as the reason of it, is adverted to in a late case by Mr. Justice Gaselee, and stated in a note by the reporter—Morris vs Davies, et ux, (3 Carr. & Payne, 427.) On the English circuits, the judges have but one commission of assize, and of oyer and terminer, for the whole circuit, although their commission of goal delivery, is special, for each county. The jurisdiction, therefore, of the judges, as a court of trial, only terminates with the circuit. As the court has no power to discharge the jury, and as its functions cease at the end of the circuit, the jury are kept in attendance, and when the judges depart from the bounds of the last county, the duties of the jury necessarily end with the existence of the court to which it is attached.
As none of the elementary writers, before quoted, have given any reasons for the existence of the rule stated by them, many subsequent judges have supposed it to be a mere tradition of the common law, having no adjudicated case to support it. That this idea is unfounded, the case of Rex vs Ledingham, (the case cited from Bro. Ab.) and the concurrent testimony of Lord Hale and Blackstone, tend to show—(2 Hale’s P. C. 297; 3 Black. Com. 376.) Lord Hale cites two adjudications in support of his text—19 Assiz. 6, and 41 Assiz. 11.
It is scarcely possible, that in the course of the centu— ries, during which the trial by jury has been preserved g in England, that cases should not have occurred, in which juries have not agreed; yet we no where find any cases, except those in the reign of Charles the Second, in which judges have claimed the discretionary power to discharge juries. If we examine the cases, we [206] shall fitid, that so far from claiming this power, it is in all, except those before stated, expressly, or by implication, denied. MansePs case, reported in 1 Anderson, 103, is not before us, but from the statement of it by Mr. Justice Foster — (Foster, 31,) — 1 info;;, that some verdict which the court ought to have received, was, in point of fact, agreed on by the jury; and that they would agree on no other: this being the case, the judges induced the prisoner, who, according to the custom of the times, was unaided by counsel, to agree, that a juror might be withdrawn, and with his consent, thus induced, a mistrial was ordered. Mr. Justice Foster reprobates this conduct of the judges, saying, the jury not being agreed on any verdict at ail, nothing remained to be done by the court, but to send them hack, and to keep them until they should agree to such, a verdict as the court could have received and recorded, if the want of agreement on a verdict, furnished of itself, a sufficient reason to discharge the jury, why was the consent of the prisoner required, and why 'does the case call for the reprobation heaped on it by the eminent judge, whose opinion I have just quoted? In the cases of Whitehread and Fen week, (the two which occurred in the reign of Charles the Second.) juries were discharged after evidence given and closed ; because it was not sufficient to convict, and in order that the crown might be better prepared on another trial. These cases are never mentioned but to be reprobated, and nearly ail the judges of England condemned them as cruel and illegal, and Mr. Justice Foster hopes they may never be drawn into example, y I am free to confess, that I can perceive no sound distinction, between a dis-[207] crctic.n exercised, in discharging a, jury after the evidence is hueve!, and the same diseroiicn exercised because a jury cannot agree. In both canoe, the; .uy is discharged, because the evidence is not sufficient to convict; bat, in the one cere, the opinion :.e loaned by the judge, and on the other, by a portion of the jury. The result to the prisoner is the same, in each case: he is tried again, and the State may be better prepared on the second trial. In the case of the Iiinloch’s, (Foster, 17 to 40,) the whole subject underwent the deliberate consideration of ten of the Knglish. judges: it was made a question in this case, whether a prisoner could consent to a discharge of a jury, even when he was thereby let in to claim an advantage, which he might otherwise have lost; and it was determined by nine judges against one, that he could. I understand all the judges; as admitting the general rule to be a good one, which is laid down by Lord Coke, but that it is not universally binding; nor is it easy to lay down, any rule which will be so. Foster says ‘ the general question’ (touching the power of the court to discharge jurors sworn and charged in capital cases,) ‘ is a point of great difficulty, and of mighty importance, and I take it to be one of those questions, which are not capable of being determined by any general rule, that hath hitherto been laid down, or possibly ever may be.’ And again, after stating many cases in which the rule has no application, he says: ‘These instances, therefore, must be considered as so many exceptions to the general rule; though I confess, they do not come up to the case of discharging one Jury., and bringing the prisoner to his trial by another.’ And again: “ Upon the whole, my opinion [208] is, that all general rules, touching the administration of justice, must he so understood, as to he made consistent ■with the fundamental principles of justice: and consequently, all cases, where a strict adherence to the rule would clash with fundamental principles, are to he considered as so many exceptions to it.”
The cases of exceptions are principally the following. Where a juror wilfully departed from the jury, and went out of town — 2 Hale, 297 : Where the prisoner was suddenly taken ill, and ohUccd to be removed from the presence of the court—Meadow’s case, (Foster, 76;) Streek’s case, (2 Carr. & Payne, 413;) Stevenson’s case, (Leach C. C. 618:) Where one of the jurors was suddenly taken ill, so as to he unable to proceed in the hearing of the case; Rex vs Edwards, (4 Taunt. 309;) Salcbert’s case, (Leach C. C. 706;) Rex vs Edwards, (Russ. & R. C. C. R. 224;) (1 Hale P. C. 35.) Another class of exceptions may also he noticed, without our being understood as assenting or dissenting to their principles. These are those where a jury has been discharged, in order to the preferring a new indictment, better suited to the nature of the case; where, through the ignorance or collusion of the officer, or the mistake of the prosecutor, the fact laid differs from the real fact, or comes short of it in point of guilt—(Kelynge, 26, 52; Comb, 401:) or, where undue practices appear to have been used to keep material witnesses out of the way —(1 Vent. 69; 2 Hale, 295:) or, where the jurors have been tampered with—)Hillary T. Henry 7, Rel. 3, cited Foster, 27; Salk. 646.) The only English authority in which (so far as I can ascertain) the power is claimed for a court to discharge a jury, because they [209] cannot or will not agree, is the Doctor and Student — Dial. 2 ch. s. 2: where it is asserted, “ that if the jury will not agree, the justices may take such order as may seem to them, in their discretion, to stand with reason and conscience, by awarding a new inquest or otherwise, as they shall think best — like as they may do, if one of the jurors die before verdict.” This is entirely an approved authority, but not more so than Lord Coke, Mr. Justice Blackstone, or Sergeant Hawkins; and the opinion of St.G-srmain cannot prevail against those names,supported, as they are, by the decisions adverted to.
Such are the English authorities; and they seem, in the main, consistent with each other; but when we come to an examination of the American cases, we find them so variant, and, in some cases, contradictory, that we are at a loss to deduce any general rule from them. In the United States vs Coolidge, (2 Gallison, 364,) a witness refused to be sworn, and Judge Story held, that courts possessed the discretionary power to discharge juries, whenever, in their opinion, the demands of justice required it. This opinion seems to be founded on an impression, that it was so ruled in Kinlock’s case, though I think the extract before given, of Foster’s judgment, shows that no such idea was entertained by the judges who determined it.
In the United States vs Perez, (9 Wheat. 579,) the same doctrine is held by the Supreme court of the United States, but they do not enter into an examination of the question.
In the People vs Olcott, (2 John. Cases, 301,) Chancellor Kent goes into a very full investigation of the subject, [210] and arrives at the conclusion, that courts have the power to discharge juries, whenever, in their discretion, they think it becomes necessary for the advancement of justice; and that an exercise of this discretion ought not to be revised, (in that particular case,) where a jury was discharged because they could not agree. This eminent jurist, after reviewing most of the authorities and cases before quoted, mainly founds his opinion, that there is no alternative between a denial of the power in all cases whatever, and ait unlimited discretion, — on the reason,that whenever the exception of necessity, is once admitted, the court must necessarily judge the fact, and ascertain if it exists, and thus the matter is, in all cases, made an exercise of discretion.
Now, it seems to me, that such a conclusion does not properly follow. The judge must determine the existence of the facts, but when they are ascertained, the law determines whether they constitute a case of necessity. Thus, the judge ascertains the death or sudden illness of a juror, — the law pronounces this a case of necessity, that the jury shall be discharged. The court ascertains and determines that the evidence is not sufficient to convict — It even goes further: it ascertains the existence of other testimony, which, if adduced, would, or ought to convict — The law determines, that this cause is not sufficient to discharge a jury, and thus place the prisoner in jeopardy a second time. Again, the existence of cases, in which the jury must be discharged, as the death of a juror or the judge, shows, that power is not always discretionary.
The Supreme court of New’York, in the case of the [211] People vs Barrett & Ward, (2 Caine’s, 305,) determined that a court did not possess the authority to discharge a jury, for want of sufficient evidence to convict, although such evidence was shown to o/dst, an.’ to be in the possession of the defendants, and ,he judgment was arrested, because the first jury had been irregularly discharged.
In the subsequent case of the People vs Goodwin, (18 John. 187,) Chief Justice Gpencer quotes this decision with approbation, and thus states his conclusion, as to the power of the courts: “ Upon full consideration, I am of opinion, that although the power o" 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: that it extends as well to felonies as to cases of misdemeanors, and. may discreetly be exercised in cases, where a jury, from the length of time they have been considering a cause, and their inahiiity to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion. And, in the present case, considering the great length of time the jury had been out, that the period for which the court could legally sit, was nearly terminated, and that it was morally certain, that the jury could not agree, before the court must adjourn, I think the exercise of the power was discreet and legal.”
It should he noticed, that in this case, the jury declared only half an hour before the expiration of the term of the court, that there was not the least possibility of their agreeing. Whether this was sufficient to induce the con-[212] elusion, that a moral certainty existed, that within that time they would not agree, is a point which we will not determine; hut in all similar cases, it would certainly he better to continue to the last moment, than to present a question exceedingly difficult of solution in principle. If we were disposed to acquiesce in the general correctness of the rule, as declared in the People vs Goodwin, we should yet be behind the New York decisions, — as in the late case of the People vs Green, (13 Wend. 55,) the court overleaped all barriers, and decided that the discharge of a jury is, in all cases, a matter of discretion with the judge trying the cause, and that its exercise cannot be reviewed.
In Pennsylvania—Commonwealth vs Cook, (6 Serg. & Rawl. 577,) it was decided, after great consideration, and a review of all the cases, ancient and modern, that a jury could not be discharged because they were unable to agree. And, in North Carolina, the doctrine has been carried to the extent of declaring, that when the jury did not agree within the time during which the court was authorised to continue, that the omission to return a verdict, was equivalent to an acquittal, and that the prisoner was entitled to be discharged, as he could never be legally tried by another jury—Ex parte Spear, (1 Dever. 491;) the State vs Garriques, (2 Hayw. 241.)
Although the American cases are thus variant, their attentive examination will aid very much in arriving at the true understanding of the subject, as it is very thoroughly discussed in many of them, and we cannot arise from the perusal of them, without being satisfied that each decision has much appearance of reason to [213] support it, however adverse it may he to others, The prominent reason which has led to the adoption of the discretionary rule, seems to he the certainty that jurors will not always agree, and the apparent inconsistency of forcing them to agree hy hodily exhaustion and confinement. This is assuming what should he proved. In no case ought a juror ever to be forced to any opinion whatever ; hut how can it he ascertained that they will never agree? Men may, and do frequently, honestly differ in opinion, and think that they shall ever continue thus to differ; yet experience demonstrates, that conviction often takes place, when the subject or the facts are again examined. The law declares, that every one shall he entitled to the benefit of a trial hy jury, and as long as they continue in health, and capable of reasoning on his case, he is entitled to the exercise of these powers. Whenever from exhaustion or any other cause, a juror becomes unable to exercise these functions, and the fact is shown to the court to he such as much continue, then, a case of necessity has occurred, and the jury ought to he discharged.
As we are, in a great degree,1 thrown back on the English cases and authorities, for the determination of this case, I think we may deduce from them, certain general positions, which seem to he fully sustained.
1. That courts have not, in capital cases, a discretionary authority to discharge a jury, after evidence given;
2. That a jury is, ipso facto, discharged, hy the termination of the authority of the court to which it is attached ;
3. That a court does possess the power to discharge [214] a jury, In any case of pressing necessity, and should exercise it whenever such a case is made to appear ;
4. That sudden illness of a juror, or of the prisoner, so that the trial cannot proceed, are ascertained cases of necessity, and that many others exist, which can only he defined when partiular cases arise;
5. That a court does not possess the power, in a eap-ital case, to discharge a jury, because it cannot, or will not agree.
When we test, by these rules, the proceeding had in this case, we find that the discharge of the first jury, having been for no other cause than the jury were not agreed, we are compelled to say it was irregular, and unwarranted 'by law : the second jury having been discharged in consequence of the expiration of the term, was, in itself, regular.
The effect, of this irregularity, only remains to be considered. It is not very important, at this time, to determine the meaning which is to be given to the thirteenth section of the declaration of rights, which provides that no person shall, for the same offence, be twice put in jeopardy of life or limb, as it is clear that such is the unquestionable doctrine of the common law; and we certainly have no statute which has introduced a different rule, as to the trials of that class of individuals, to which the prisoner belongs. It has been made a question, whether any of the provisions of the declaration of rights extends to slaves; therefore, it is desirable that this case shall be decided independent of the constitutional question, unless the same is necessarily involved.
Judge Story, in the case of the United States vs [215] Gibert, et al, (2 Sumner, 19,) had occasion to examine a similar provision in the constitution of the United States, and found the authorities clear to sustain his view, that the privilege thus secured, is nothing more than a constitutional recognition of a very ancient and well established maxim of the common law. But notwithstanding the existence of this maxim, it has never, in England, been decided to extend further than the cases of acquittal and conviction.
In those cases, in which judgment has been arrested for any defect in the indictment, or if an acquittal has been had on an insufficient indictment—Staundford P. C. lib 2,106—Lord Hale and Sergeant Hawkins recognizes the same doctrine, which is thus stated by the latter: “ I take it to be settled at this day, that wherever the indictment or appeal, whereon a man is acquitted, is so far erroneous (either for want of substance in setting out the crime, or of authority in the judge before whom it was taken,) that no good judgment could have been given on it against the defendant, — the acquittal can be no bar of a subsequent indictment or appeal; because in judgment in law, the defendant was never in danger of his life from the first; for the law will presume, •prim,a facie, that the judges would not have given a judgment which would have been liable to have been reversed. But if there be no error in the indictment or appeal, but only in the process, it seems agreed that the acquittal will be a good bar of a subsequent prosecution, notwithstanding such error ; the best reason for which seems to be this, that such error has been solved by process”—2 Hawk. ch. 35, s. 8; 2 Hale’s P. C. 181, 220, 249, 250.
[216] In accordance with this doctrine, this court refused to discharge a prisoner, oil reversing the judgment of the Circuit court for an error committed in empanneling the jury ; though it was urged that this was extending the rule beyond any previous case—The State vs Coleman Williams, (3 Stew. 454.)
If by a reversal of the judgment, the prisoner could be placed in the same position which he occupied when the error was committed, we might say, in accordance with the adjudicated cases, that his life had never been at hazard; but in the present case, we never can return the prisoner to that stage of the case, at which the error intervened.
We cannot judicially know how many jurors were convinced, that he was innocent of the crime charged; nor can we know, but that an acquittal might have been had, if the jury had not been retained. On principle, then, it seems clear, that we cannot place the prisoner in a worse situation than he was, when the error was committed ; and as it is certain that some of the jurors were not convinced of his guilt, when they were discharged, and as this may never be the result of another trial, it follows, that the unwarranted discharge of the jury after evidence closed in a capital case, is equivalent to an acquittal. Such was expressly admitted by Chief Justice Spencer, to be the effect of an unauthorised discharged—People vs Goodwin, (18 John. 187;)and was so declared in the Commonwealth vs Cook, (6 Serg. & Rawle, 577;) and the State vs Garriquez, (1 Hayw. 241.)
Such must have been the opinion also of the English judges, who sat in the case of the Kinlock’s, (Foster, 17 [217] to 40,) as they entertained the motion in arrest of judgment, a matter which would not have been permitted, unless the position, if sustained, would have effected the discharge of the prisoners.
We may also claim the support of Judge Story, who has carried the rule so far as to deny the authority of a court to grant a new (rial, in a capital case, at the request of the prisoner. Without yielding our acqu escence to this extension of the rule, we may say, it is clear, from his exposition of the cases, that an unauthorised discharge of a jury is equally fatal, to any subsequent trial, as an acquittal or conviction.
Our conclusion is, that the judgment of the Circuit court must be reversed, and the prisoner discharged.
[The writ of error in this case was applied for and awarded, at January term, 1S38, but the Anal decision upon the merits, was not made until June term following. — Not being in possession of the opinion until January, 183!), the case has been, casually, inserted in an earlier part of this volume, than was strictly proper.]
The Reporter.