1861. The QUEEN v. CHARLES WORTH. and again to the waste of the time of the Court, which is the time of the suitors and the country. Therefore I am not prepared, either as matter of law, or of expediency, to give up the judicial authority of the Judge presiding at a criminal trial, in a case when justice is being frustrated by the act of prisoner, or by something in which he concurs and co-operates, to prevent justice from being defeated by postponing the trial and discharging the jury. That brings us to this question, whether there are cases in which, independently of the concurrence of the accused in the means whereby justice would be frustrated, the Judge would be justified in exercising that authority. And we must take it here that in the act by which justice was about to be defeated (because, though we must not assume that the prisoner was guilty, yet justice was frustrated by the inquiry being stopped), the accused was not a co-operating party with the witness; and therefore the question is whether, assuming that the Judge has authority to discharge the jury, this was a case in which it would be properly exercised. The inclination of my opinion is that, if my brother Hill had the authority, this was a case in which it was not fit to exercise it. There may be a difference of opinion on that point, and it is not necessary to decide it. This is one of those cases on the confines. But this I know, that a more cautious or conscientious Judge never sat upon the bench: and, as he only doubted his legal power, and entertained no doubt as to this being a fit case for its exercise, far be it from me to say that he acted wrongly. The second question presents even greater difficulty in the way of the defendant. Assuming that the Judge had not this power, or that he exercised it improperly, the question is, whether what he has done amounts to an acquittal of the defendant, and entitles him to have judgment entered up as if he had been acquitted. On this I can add nothing to the conclusive reasoning of Crampton J. in Conway and Lynch v. The Queen (a), on which so much observation has been made. There is no instance of such a plea as this, except in this case and that. It may be said with truth that may be because, since the practice established in the time of Lord Holt, juries have not been discharged, and therefore the occasion for such a plea has not presented itself. On the other hand, the only pleas known to the law of England to stay a man from being tried on an indictment or information (and we must consider this as if it was a fresh information, and the defendant had pleaded to it the facts stated on the record) are the pleas of autrefois acquit and autrefois convict, and it is clear that this statement of facts amounts to neither. It is said that a man is not to be tried twice, and is not a second time to be put in jeopardy; and that that applies equally to this case as to a case where a man has been convicted or acquitted. In that I cannot concur; and the reasoning of Crampton J. is conclusive on that subject. When we talk of a man being twice tried, we mean a trial which proceeds to its legitimate and lawful conclusion by verdict; and when we speak of a man being twice put in jeopardy, we mean put in jeopardy by the verdict of a jury; and he is not tried nor put in jeopardy until the verdict is given. If that is not so, then in every case of a defective verdict a man could not be tried a second time; and yet (a) 7 Irish Law Rep. 149. 165. VOL. I. 2 M B. & S. 1861. The QUEEN V. CHARLES WORTH. 1861. The QUEEN V. CHARLES WORTH. it is well known that, though a jury have pronounced upon the case, yet, if their verdict be defective, it will not avail the party accused in the event of his being put on his trial a second time. Therefore, in my humble judgment (though it is not necessary to decide the point), as at present advised, I cannot come to the conclusion that there has been, in this case, a trial, or that the accused has been put in jeopardy, or put in the position, either in fact or in law, of a man who has been once acquitted, and who, having been once acquitted, cannot be put on his trial a second time. This being my view, and having given all the attention I could to this case, though I do not wish it to be understood as a final and settled conclusion, I only say that in this state of things we ought not to interpose, and that is all we have to decide. It may be a hardship on the accused that he should be again put on his trial, when, perhaps, on this record being finally made up and taken to a Court of error, it may be held he ought not to have been tried a second time; but we cannot help that. Possibly this may be the only case in which such a question will present itself, because, if it is taken to a Court of error, we shall have the point definitely settled whether the defendant in an indictment or information, upon the trial of which no verdict was given one way or the other because the jury were discharged, is entitled to have that discharge operate as an acquittal, so as to entitle him to final judgment. But are we at the present moment, and in the present state of the record, bound to prevent this case going to its final conclusion? I think that, unless we can clearly see that the defendant is entitled to be treated as if he had been acquitted, we cannot, with propriety, interfere. By 1861. V. CHARLES WORTH. making this rule absolute, we may, though the inclination of my opinion is the other way, deprive the Crown The QUEEN of the opportunity of taking the case to a Court of error. Therefore I am of opinion that this case must take its course like other cases in which a Judge may have erred, if indeed he has erred. In some cases there may be no remedy except in the event of a result fatal to the accused on the second trial, which might give him an equitable ground for a pardon by the Crown, if serious doubt should be entertained as to the propriety of the discharge of the jury on the first trial. But in this case the defendant will have the opportunity of taking the opinion of a Court of error on that point, if the result of the second trial should be against him. Therefore this rule must be discharged. WIGHTMAN J. In a case of this importance, I could have wished for a longer time to consider the many, and not always concurring, authorities that have been cited upon the argument; but, as time is of importance in this case, I have given them the best consideration that I can. The two great questions that were argued before us were, 1st, whether the Judge was warranted in discharging the jury in this case; and, secondly, whether if he was not, the defendant could again be put upon his trial, and this Court award a venire de novo; or whether the defendant was entitled, upon the matter appearing upon the record, to judgment quod eat sine die. It appeared by the record that the defendant, being charged with a misdemeanor, pleaded not guilty; that a jury was impanelled and sworn to try that issue, and that, because a material and necessary witness for the Crown refused to 1861. give evidence, the Judge, at the request of the prosecutor's The QUEEN Counsel, discharged the jury from giving any verdict. V. CHARLES- Upon the first point, whether the Judge was warranted in discharging the jury under the circumstances stated upon the record, a great many cases were cited in argument, some in which the jury had been discharged in criminal cases upon ground nearly similar to that in the present case, and others in which the jury had been discharged upon the ground of necessity, as upon the illness of a juryman, or of the prisoner, or other circumstances occurring, which rendered the further proceeding with the case impracticable; and it was said, and I believe correctly, that in no instance had the jury been discharged under such circumstances as in the present case since the Revolution. The cases will all be found collected in the report of the case of Conway and Lynch v. The Queen (a), and were all commented upon in the argument. In Kinloch's Case (b) Mr. Justice Foster, in his judgment, p. 29, reviews and comments upon the cases and the law upon this point, and expresses a strong opinion against the propriety of the Court in its discretion discharging a jury after evidence given and concluded on the part of the Crown, merely for want of sufficient evidence to convict, but refrains from giving any opinion as to the propriety of such a course, where undue practices have been used to keep witnesses out of the way, or where witnesses have been prevented from giving evidence by sudden and unforeseen accidents. The case nearest to the present which has occurred in modern times of which I am aware, is that of The King v. Wade (a), in which the prosecutrix, in a trial for a rape, when she (b) Foster, 16. 22. (a) 7 Irish Law Rep. 149. |