REG. v. NEWTON. Jury. delivery, thas would not entitle the prisoner to be discharged; because the Habeas Corpus Act does not give that right till after a second assize has passed. But, further, it is said, an abortive Practice trial has taken place; there is, however, no record of any trial; no Discharging judgment either of conviction or acquittal. It must be admitted that if one of the jury dies during the trial, another jury may be sworn to try the prisoner; but the judge cannot be driven to make a juryman sit in the box until he dies; he must, therefore, judge when the proper time has arrived for discharging the jury; and his decision cannot be reviewed. It is difficult to see how it could ever be made the ground of a motion in arrest of judgment, as in Kinloch's case; for, upon that motion, the parties would be confined to matter appearing on the record; and the fact of the discharge of the jury would never appear. [COLERIDGE, J.-I think that is an argument against yourself; because the greater the difficulty of raising the question, whether the judge has properly exercised his discretion, supposing it to exist, the less probable is it that in a matter so important, the discretion should exist at all.] The necessity of exercising a discretion is forced upon him. Old practices cannot be much relied on; for formerly in criminal courts there was only one indictment against all the prisoners. [LORD DENMAN, C. J.-Yes; and the jury, at the end of the day, retired and considered all the cases which they had heard during the day; and then gave all the verdicts in the different cases together.] In the present case the learned judge had but two courses to pursue; either to discharge the jury, or to take them to the border of the county, where they would be discharged by the effect of the judge leaving the jurisdiction. In Conway and Lynch v. The Queen (7 Ir. Law Rep. 149,) the question was raised by a plea, which stated The Attorney circumstances different from those existing in the present case, General for the The following is the marginal note of that case:-"A jury charged Crown. with the trial of persons indicted with a capital offence having remained enclosed for a considerable time to consider their verdict, returned into court, and intimated to the judge that there was no likelihood of their agreeing, who thereupon discharged them without consent, and without objection on the part of the prisoners, or of the crown, and without any fatality having occurred, and remanded the prisoners. The prisoners being again indicted at the following assizes for the same offence, put in pleas in the nature of pleas puis darrein continuance. The crown replied, and the prisoners demurred to the replication. Held, that the demurrer should have been allowed, and that the judge had no discretion to discharge the jury, unless a case of evident necessity had existed. Held, also, that if such necessity existed, an entry of the facts establishing such necessity should have been on the record.” (Crampton, J., dissentiente.) COLERIDGE, J.-In Rex v. Edwards (4 Taunt, 309; Russ. & Ry. 224), which was a capital case, the jury were discharged on account of the illness of a juryman; and Blackstone (4 Comm. 360), excepts "cases of evident necessity." Sir John Jervis.-All the cases are collected in Chitty's Burn's Justice, tit. Jurors. REG. v. NEWTON. Practice Jury. Huddleston, contrà.-It is admitted that there are exceptions to the general rule, which is laid down with the utmost distinctness in many cases, and in nearly all the text books of authority. In Discharging 1 Inst. 227 b, it is said, "a jury sworn and charged in a case of life or member cannot be discharged by the court or any other, but they ought to give a verdict;" and in 3 Inst. 110, "to speak it here, once for all, if a person be indicted for treason, or of felony, or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must be received, and they cannot be discharged." To the same effect is 2 Hawk. P. C. c. 47, s. 1; Hale's Summary of the Pleas of the Crown, Verdict, 267; Viner's Ab. Trial, X. E. 4; Bac. Abr. Juries, G. 576; Trials per Pais, c. 12, p. 252; Chadwick v. Hughes (Carth. 465). In Kinloch's case, Mr. Justice Foster calls in question the authority of Chadwick v. Hughes, and treats it as an extra-judicial opinion. The attention of that learned judge was not drawn to the case of R. v. Segar (Comb. 401), in which the same question was raised two years before. Further, Chadwick v. Hughes was decided in 1698, long after Ferrar's case (T. Raym. 84), which was decided in 1634, but to which Mr. Justice Foster refers as having destroyed the common tradition amongst lawyers upon this subject. [COLERIDGE, J.— In R. v. Segar, the jury were discharged without giving a verdict ; upon that there seems to have been no difference of opinion amongst the judges, but a query is added by the reporter. LORD DENMAN, C. J.-And Comberbach is not a reporter of great au- Huddleston for thority.] Further, in Kinloch's case, the general rule was not dis- the prisoner. puted, but the judgment proceeded upon the ground that that case was an exception; and Sir Martin Wright, dissenting from that judgment said, "he thought it safer to adhere to the rule of law, which is clearly laid down by Lord Coke, than upon any account to establish a power in judges, which it is admitted hath been grossly abused, and may be so again." In the Eighth Report of the Criminal Law Commissioners, p. 155, s. 9, art. 7, the same general rule is stated; and the notion of the judge having a general discretion to exercise as to the time at which he may properly discharge the jury, is also contradicted by the old practice of taking the jury to the border of the county. (1 Chitt. Cr. Law, 634; Burn's Justice, tit. "Juror," citing 2 Hale, 297; Trials per Pais, 274, 285; and Morris v. Davis, 3 Car. & P. 427.) In Lord Delamere's case (11 St. Tr. 510), the jury were not allowed to separate; and Herbert, C. J., fully recognized the doctrine laid down by Lord Coke. But there are certain well recognized exceptions to that rule, and those exceptions exist only in cases of evident necessity: (4 Blac. Com. 360.) If, for instance, the pri soner or a juryman dies or is taken ill, or if the prisoner requests it, in order to enable him to make another defence, the judge may discharge the jury; but excepting in such cases he has no discretion. Rookwood's case (4 St. Tr. 649), at the most, only shows an REG. v. NEWTON. Jury. opinion of the judges that at the prisoner's request, and for his advantage, and with the consent of the crown, the jury might be discharged without giving a verdict: R. v. Gould (Toml. Law Practice Dict. Jury, 3), where the discharge of the jury was rendered Discharging necessary by the death of a juryman: R. v. Edwards (4 Taunt. 309; Russ. & Ry. 224; and 3 Čamp. 207, n.); and R. v. Scalbert (2 Leach C. L. 620, 706), where a juryman was rendered incapable by illness; R. v. Elizabeth Meadows (Fost. C. L. 76); and R. v. Stevenson (2 Leach C. L. 546), in which cases the prisoner was taken ill: (R. v. Streek, 2 Car. & P. 413.) [PATTESON, J.-The death of a juryman, or of the prisoner, is a case of necessity; but not the illness of either.] None of these cases go the length of deciding that the judge has any discretion as to what is a reason. able length of time for keeping the jury together, or that the termination of the assizes at the town where the trial takes place is such a case of evident necessity as to justify the discharge of a jury. A case occurred at Stafford some years ago, which occupied ten days, and Erskine, J., who tried it, was prevented from appearing either at Shrewsbury or Hereford. The passage cited from Ferrar's case (Sir T. Raym. 84), is a mere dictum, and it is doubtful whether that was a capital case. Indeed, Hawkins (lib. 2, c. 47, s. 1), quotes it as a case of an inferior offence. The cases of juries being discharged in Kelinge's Reports (pp. 26, 52), were decided before the Revolution, and by the same judges who decided Whitbread's case. In Whitbread's case (2 St. Tr. 827), it was held that the jury might be discharged in order to enable the crown to get more evidence, which is condemned in Kinloch's case, and certainly would not be sustained now. In R. v. Stokes (6 Car. & P. 151), the jury were discharged at the request of the prisoner's Huddleston for counsel. In R. v. Wardell (Car. & M. 647), although one of the the prisoner. jury was a near relation of the prisoner, Erskine, J., and Tindal, C. J., thought that there was no power to discharge the jury. In R. v. Wade (Moo. C. C. 86), the jury were discharged in order that a witness might be taught the nature of an oath, and that was held wrong. Conway and Lynch v. The Queen (7 Ir. Law Rep. 149), is a very strong authority in support of the present rule. In that case the plea and replication stated the facts, and the objection was raised by demurrer; and, after much discussion, three of the learned judges decided that the plea was a good answer; that mere lapse of time, without a prospect of agreement, was no sufficient ground for discharging the jury. [COLERIDGE, J. -If nothing but necessity will justify the discharge, what is to be done when the commission is at an end?] There must be some period at which the judge will be compelled to leave the town; and then, perhaps, the case of necessity would arise. There must be something of a very strong and urgent nature to justify the deviation from the general rule. [PATTESON, J.-What authority is there for asking us to discharge the prisoner on habeas corpus?] It was done in R. v. Gould, and there is no other remedy. [PATTESON, J.-The statute of Charles excepts criminal cases, and the writ at common law only issues upon reasonable ground shown.] It is a writ of right; and upon return to the writ it would appear that the prisoner was entitled to her discharge. The warrant of commitment would not, under the circumstances, justify her de tention. REG. v. NEWTON. PracticeDischarging Jury. LORD DENMAN, C.J.-Very early in this argument I put the question which has been last adverted to. This person was sent to prison under a justice's warrant, on suspicion of having committed a crime, to be discharged by due course of law, and I wished to hear in what manner the effect of that warrant was got rid of. The answer given is this, that the prisoner has been put upon her trial for the crime, and that the jury were improperly discharged, -that they were improperly set at liberty, when it was their duty to remain together, and the duty of the judge to keep them together; and that, therefore, the prisoner is now entitled to be discharged. Now, in the first place, I do not see that that at all follows as a legal or logical inference; it seems to me quite possible that a jury may be improperly discharged, and yet the party charged properly remain in custody for trial. The discharge of the jury is neither an acquittal or a conviction-there is no judgment-nothing that would appear upon the record, unless the facts were specially stated in a plea, as in the case of Conway and Lynch v. The Queen. In the first place, then, protesting that I do not see that an improper discharge of the jury necessarily entitles the prisoner to be discharged, that they are at all convertible terms, the question has not been answered whether the warrant of commitment still continues in force;-I think it does, and that therefore this person has no right to be discharged. The Court of Queen's Bench in Ireland is a great authority, and the case in that court was decided upon much consideration and after full resort to Judgment of all the cases, which are discussed with much learning; and if we had any discretion to exercise, I think that we ought not to act upon it by discharging the prisoner upon this summary application. If the circumstances afford any answer, and the person is brought into jeopardy again, they ought to be put on the record. I think it ought to be pleaded by the prisoner that such circumstances had taken place as entitled her to be discharged, so that the whole matter might be solemnly argued. The question is certainly one of great importance. Mr. Huddlestone has properly pointed out that the discretion of the judge may be mistaken, or exercised from improper motives; but I do not see anything in this case which brings it within the authority of the case in the Queen's Bench in Ireland. The statement of the facts there would fall quite short of the necessity which would justify the discharge of the jury; but here there is a statement of circumstances which in many cases in England have been held to amount to that necessity-the long delay; the impossibility of the jury agreeing; and, further, the necessity of the judge performing duties in another place. It has been said by some judges that no rule can be laid down in these matters; but the fact is, that there must be rules Lord Denman, C.J. REG. v. NEWTON. Jury. and exceptions to the rules, which are a part of them; the only difficulty is in the application of them to the circumstances which may arise, and which cannot be foreseen. I admit that a necessity Practice must be shown in order to justify the discharge of the jury; but, Discharging then, in every case it remains to consider whether that necessity exists; and it is clear that the judge must exercise a discretion as to that fact. In this case it appears that the learned judge has exercised his discretion under circumstances which, in many instances, have been held in this country a complete justification; and, therefore, without entering more particularly into the argument, it seems to me that the judge has done quite right; but if not, I am of opinion that a wrong discharge of the jury does not give the prisoner a right to be discharged; and in the conclusion to which I come, I act upon the persuasion that the warrant of commitment still remains in force. Judgment of PATTESON, J.-This is an application for a writ of habeas corpus at common law; and therefore it is not grantable as a matter of course, but only upon reasonable grounds being shown. Reasonable grounds may, however, be supposed to have been shown in this case, because this is not the first application for the writ; a rule has already been granted to show cause why the writ should not issue; and it is that which is now before us; so that upon the crown coming in and showing cause, it is much the same thing as if the writ had issued and a return had been made. The proper steps therefore have been taken here to call upon us to say whether the writ ouht to be issued. Now I agree with my lord that the custody must be shown to be illegal in order to induce us to grant the writ; and it is attempted to be shown that the custody of this prisoner is illegal-that the original commitment is spent, so to speak, and has come to an end, and that the prisoner can no longer be detained, by reason of the fact that she has been put upon her trial, and that that trial has not resulted in a verdict. But I understand she still remains in custody under the original commitment; and if that be so, and there has been no trial resulting in a verdict, and there is nothing to show whether she is guilty or innocent of the charge which is made against her, I think she is properly in custody. Even supposing that there was great reason to doubt whether the judge was right in discharging the jury, still I think that the effect of that cannot be to get rid of a trial altogether; but I do not agree that there was anything wrong in the course pursued by the learned judge on this occasion. The facts here go further than they did in Conway v. The Queen. The replication in that case showed that the jury were discharged after a reasonable time had elapsed in the opinion of the judge and nothing more; but here it appears that the business of the assizes was over; the judge had nothing left to do but to take that verdict. Then what was he to do? He must take one or other of two courses. He must either have remained in the town until one of the jury was so ill, that a case of evident necessity arose, which seems absurd; or he must have taken the jury with him |