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by Perrin J. in Conway and Lynch v. The Queen (a), from a note taken by himself, the prosecutrix of an in- THE QUEEN dictment for rape, when about to be sworn as a witness, was unable to give evidence, and the jury were discharged: the Judge laid the circumstances of the case before the Judges, in Dublin, "who were of opinion, that the prisoner could not be again tried for the same offence." In Wharton on the Criminal Law of the United States, 3rd ed., p. 263, it is said: "By the constitution of the United States it is provided: Nor shall any person be subject for the same offence, to be twice put in jeopardy of life and limb;' and the same restriction, taken from the Federal constitution, exists in the constitutions of most of the States." And then cases in five of the different States are mentioned, the substance of which may be summed up in the decision in a capital case (b), in the State of Tennessee. There the jury were empannelled on Thursday evening, at two o'clock; and were kept together all night, and at nine o'clock the next morning, upon their declaring they could not agree, the Court discharged them: but "it was held that this was not such a case of necessity as authorized the Court to discharge them. It was out of the power of the Court, it was said, to discharge them without consent, except in case of sickness, insanity, or exhaustion, among themselves." (p. 267). That proposition may however be too broad (c).

(a) 7 Irish Law Rep. 161, 162.

(b) Mahala v. State, 10 Yerger, 532.

(c) "In each of the foregoing cases the opinion of the Court was founded on the assumption that to be on trial, within the meaning of the constitution, was to be in jeopardy. That such is not the ease, but that 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, Illinois, Kentucky and Missisippi.” 2 L B. & S.





If the Judge had a discretion to discharge the jury, The QUEEN. it would have been unnecessary to resort to the practice

of fining them; Doct. and Student, ch. 52; or carrying
them in carts after the Judges, The King v. Ledgingham(a);
for the purpose of compelling them to give a verdict (b).
[Cockburn C. J. The doctrine of discharging the jury
on the ground of necessity appears to have been of
later growth.] If the Judge had an unlimited discretion,
it would be to no purpose to set out on the record a
statement of the circumstances under which the discre-
tion was exercised, as was done in The Queen v. Newton (c),
and as Perrin J. in Conway and Lynch v. The Queen (d)
said was the proper course. [Blackburn J. It is
fair towards the prisoner that the circumstances
should be put on the record. Crompton J. And
to explain why the new process is issued.] That
the discretion cannot be reviewed is an argument
against its existence. The exercise of it might condemn
the accused to perpetual imprisonment. [Cockburn C. J.
That observation applies equally to the power of postpo-
ning a trial.] It shews that a discretionary power ought
not to be enlarged. If a sudden impediment occurs
which can be removed, the Judge may adjourn the hear-
ing of the case; though that power was formerly denied.
[They cited Lord Delamere's Case (e); Eyre C. J., in The
King v. Hardy (ƒ), and in The King v. Horne Tooke (g);
The King v. Wilkes (h), before Lord Mansfield; and



Wharton on the Criminal Law of the United States, 3d ed., p. 268, citing
U. S. v. Perez, (5) Wheaton, 579.

(a) 1 Ventr. 97.

(b) See 4 Bac. Abr. 577 in notis, 7th ed., tit. Juries.

(d) 7 Irish Law Rep. 149. 160.

(c) 3 C. & K. 85. 87. 92 note, f.

(e) 11 How. St. Tr. 510. 559. 561.

(f) 24 How. St. Tr. 199. 414.
(h) 19 How. St. Tr. 1127; S. C. 4 Burr. 2527.

(g) 25 How. St. Tr. 128. 132.

The King v. Stone (a), before Lord Kenyon; The King v. Edwards (b), before Lord Ellenborough; The King v. Woolf (c), before Abbott C. J.] In The Queen v. Tempest (d), which was a case of felony, Watson B. said that he had no power to adjourn the case until the arrival of the next railway train, by which the witnesses were expected. [Cockburn C. J. In The Queen v. Wenborn (e), after the witnesses for the prosecution had been examined, it being discovered that the stolen property was not ready to be produced for the inspection of the jury, Gurney B. tried other cases while the property was sent for, and after it had been brought the trial of the prisoner was proceeded with, and he was found guilty. The reporter (p. 268, note) adds: "The practice adopted in this case is frequently followed at the Central Criminal Court. Quære, as to its propriety."] There is no case in which there has been an adjournment from one day to the next. [Crompton J. It is a sacred rule that the jury shall not separate before giving their verdict. Suppose the Judge, after charging them, allowed them to separate at night; after the verdict, which might be set aside on error, would there not be a venire de novo in the case of a misdemeanor, as there was in Campbell v. The Queen (f)?] In that case there was bad jury process. [Crompton J. Suppose the jury do an illegal act, might the defendant say that he could not be tried again?] If the defect appears on the record, and entitles him to reverse the judgment, he cannot be tried again, either by a venire de novo, or on a fresh indictment; though, if the indictment be bad, he may. Cockburn C. J.

(a) 6 T. R. 527. 530.

(b) Russ. & Ry. 224. S. C. 4 Taunt. 309. 311.

(c) 1 Chit. Rep. 401.





(e) 6 Jur, 267.

(d) 1 F. & F. 381.

(f) 11 Q. B. 799, 814




Suppose a verdict of murder on an indictment for manThe QUEEN slaughter.] If the jury, once charged and sworn on a good indictment for any offence, find a void verdict, or are discharged, the defendant cannot be tried again. In civil trials the Judge cannot, of his own authority, discharge the jury except in cases of disagreement. [Cockburn C. J. Suppose a Judge did discharge the jury for some other reason.] There would be no remedy; but that would not nullify the maxim that no man shall be tried twice for the same offence. Further, in this case the question is whether, if in the course of the trial some unexpected obstacle occurs which deprives the prosecutor of his means of proving the case, the Judge has the power, at the instance of the counsel for the prosecution, and without the consent of the prisoner, to discharge the jury. There is a broad distinction between this and all the cases in which a jury has been discharged on the ground of necessity, real or supposed. In this case the Judge acted upon the statement of the counsel for the Crown as to the want of other evidence in the other cases the Judge acts on what is before him, without the interference of counsel on either side, and then he necessarily has a discretion.

If the Judge had no power to discharge the jury, there is error on the record; and whenever there is error on the record, it is the duty, in the first instance, of the Court in which the record is, and in the second instance, of the Court of error to reverse the erroneous proceeding. If there is an imperfect entry of the verdict, so that the issues are not decided, a venire de novo is awarded. [Blackburn J. referred to The King v. Wilkes (a).] But where there is an imperfect record, so that it will not support the judgment, the judgment must

(a) 5 Burr, 2527.

be reversed, and the prisoners discharged; The Queen v. Bourne (a). [Blackburn J. In Trafford v. The King, in error (b), where, upon an indictment for a nuisance there was a defective special verdict, the Court said, “under these circumstances, the only course we can pursue is to reverse the judgment which has been given for the Crown, and to award a venire de novo." In Campbell v. The Queen (c), upon the question whether a venire de novo might issue, Parke B., delivering the judgment of the Court of Exchequer Chamber, p. 839, drew a distinction between cases of felony and misdemeanor.] This objection being on the record is as much ground of error as the disallowance of challenge of jurors in Mansell v. The Queen, in error (d). That the improper discharge of the jury was not ground of error would have been an answer to the motion in Kinloch's Case (e). In The Queen v. Davison (f) the Judges did not decide that the discharge of the jury was not ground of error, but that it was lawful, and therefore there was no error. [Crompton J. Admitting that the discharge was unlawful, they held that it was matter of discretion. Cockburn C. J. Pollock C. B. said (p. 254), "We are of opinion, generally, that where a Judge has exercised his discretion, that discretion is not to be made the subject of question. It cannot be ground for error, nor can it be traversed before a jury." Blackburn J. In Conway and Lynch v. The Queen (g), Crampton J. argues that if the discharge was wrongful, whether it is a matter of discretion or not, it is not ground of error.] Crampton J. there says: "It is admitted by the Crown that if judgment upon the demurrers should have

(a) 7 A. & E. 58.

(b) 8 Bing. 204. 213. S. C 2 Cr. & J. 265. 278.

(c) 11 Q. B. 799.

(e) Fost. 16. 22.

(g) 7 Irish Law Rep. 149. 166.

(d) 8 E. & B. 54.

(f) 2 F. & F. 250.





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