The People v. Reagle. and before they had rendered their verdict, in such a manner as to hold the prisoner to another trial, must not only be one of those cases which the law regards as an absolute necessity, but such cause must be passed upon by the court; it must be presented to the court in such a manner that the court may exercise its discretion upon it; such cause must engage the attention of the court, and the decision of the court must be based upon such cause, after deliberation. There was never any cause for discharging the jury presented to, considered by, or in any way passed upon by the court of oyer and terminer in this case. The jury were not discharged by its judgment or order for any cause recognized by the law as creating any necessity. 9. It is a rule so well settled that I do not deem it necessary to cite numerous authorities to sustain it, that when after a jury have been regularly and duly sworn on the trial of an indictment for felony, and evidence has been offered, if, for any cause, surprise, mistake or error, the district attorney finds himself unable to proceed with the trial, and he withdraws a juror with leave of the court and stops the trial, it is equivalent to acquittal, and the prisoner cannot be tried again. So, where the district attorney was prepared with competent evidence which was by error of the court excluded, and the district attorney could not proceed with the prosecution until other evidence was supplied, and was obliged to withdraw a juror and stop the trial, in consequence of the erroneous ruling of the court, held this amounted to an acquittal, and the prisoner could not again be put upon trial. (Klock v. The People, 2 Parker, 676.) I can see no distinction in principle between these cases and the one at this bar; in those cases the error, mistake or surprise, of the district attorney, or the court, as in the last case cited, prevents the prisoner from receiving the verdict of the jury that has been sworn in his case, and before whom the trial has been commenced; The People v. Reagle. in either case it is the fault of an officer of the people, without any fault or assent on the part of the prisoner. In this case it was the mistake or error, entirely-the act-of an officer of the people and a member of the court, that deprived the prisoner of his right to have a verdict rendered in his case by the jury before whom he had been tried, or to have that jury come into court and there present their cause for not rendering a verdict, and have that cause passed upon by the court, without one mind being withdrawn from that deliberation. These were rights guaranteed to the prisoner and secured to him by law. When he was denied these by error, mistake or any unlawful act or proceeding, must his liberty again be put in jeopardy by the hazard of another trial? How long can such experiments be continued before he shall be entitled to an acquittal? 10. If what has been done in this case shall be sanctioned, and it shall be held that the prisoner could be again put upon trial, would it not be to deny him the protection the constitution and common law would give against being placed twice in jeopardy for the same offense? Would it not also be giving to the people a new trial, where in the first they failed to convict the prisoner, simply upon their showing irregularity or error upon the part of some of the officers of the court or of the court itself? This is strictly prohibited by law, in case the jury render a verdict of acquittal, however irregular or erroneous may have been the proceeding upon the trial which led to that result, or however much such error or irregularity may have contributed to that result. Ought there to be any more favor shown the people, or have they any greater rights when their officers of the court who had this trial in charge, or the court itself, have by a similar error or irregularity, and without any fault on the part of the prisoner, prevented the jury from rendering such a verdict? II. The question put by the district attorney to the wit The People v. Reagle. ness Barbara Bowers, "What did you hear Beckerich say in the bedroom, if anything?" was incompetent, and ought to have been excluded. Beckerich, who was the complaining witness, and the bitterest foe of the prisoner, could not manufacture evidence against the prisoner by making declarations as to his identity in the hearing of other parties and in the absence of the prisoner. No evidence of such declarations can be admitted. Only in trials for murder or manslaughter can the declarations of the injured person be given in evidence. Even in that case the circumstances under which the declarations were made should be fully disclosed to the court, that it may be determined whether the declarations were made under the expectation of certain and immediate death; as only in that case would such evidence be competent. (1 Arch. Crim. Prac. 449.) III. It was error in the court to deny the prisoner the right to have Catharine Reagle, the wife of the prisoner, sworn and examined as a witness on the trial. By chapter 887, vol. 2 of the laws 1867, it is enacted that the husband or wife of any party to an action or proceeding in any court, or before any person having, by law or consent of parties, authority to examine witnesses, shall be competent and compelable to give evidence the same as any other witness on behalf of any party to such suit, action or proceeding. The second section of this chapter excepts from its operation criminal trials. By chapter 678, vol. 2, laws of 1869, it is enacted as follows: "Sec. 1. In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offenses, and in all proceedings in the nature of criminal proceedings in any and all courts, and before any and all officers and persons acting judicially, the person so charged, shall, at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create a pre The People v. Reagle. sumption against him." Prior to 1869, section 398 of the Code of Procedure was as follows: "No person offered as a witness shall be excluded by reason of his interest in the event of the action." In 1869 this section (398) of the Code was amended so as to read as follows: "No person offered as a witness in any action or proceeding in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto, except as is provided in the next following section of this act. Nothing contained in the 8th section of this act shall be held or construed to affect or limit the operation of this or the next following section." The next section (399) here referred to, is in regard to the exclusion of evidence of conversations or personal transactions with deceased persons, lunatics, &c., in actions against administrators, committees, &c. Section 8, referred to in said 398th section, as amended, is as follows: "This act shall be divided into two parts. The first relates to courts of justice and their jurisdiction. The second relates to civil actions commenced in the courts of this State," &c. It thus seems clear that section 398, as amended, is not restricted in its operations to civil cases, but has equal application to criminal trials, and we submit it renders the husband and wife equally as competent to testify for or against each other in criminal trials as they as they are in civil trials. Lyman K. Bass, (district attorney,) for the people. I. Section 6, of article 1, of the constitution, providing that "no person shall be subject to be twice put in jeopardy for the same offense," is but a statement of the common law doctrine, and the prisoner is not aided by it, unless he can sustain a plea of autrefois acquit, or autrefois convict. Such plea can only be sustained when there has been a verdict, with the single exception hereafter named. (People v. Goodwin, 18 John. 187. U. S. v. Perez, 9 Wheat. 579. The People v. Reagle. * * Wharton's C. L., §§ 580, 582, and cases cited.) Spencer, Ch. J., in the case first cited, says: "The test by which to decide whether a person has been once tried, is perfectly familiar to every lawyer; it can only be by a plea of autrefois acquit or a plea of autrefois convict." "In a legal sense, therefore, a defendant is not once put in jeopardy until the verdict of the jury is rendered for or against him, and if for or against him, he can never be drawn in question again for the same offense." Washington, J., said, in U. S. v. Haskell, (4 Wash. C. C: R. 402 :) "We are clearly of the opinion that the jeopardy spoken of in this article, can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereon." "This was the meaning affixed to the expression by the common law, notwithstanding some loose expressions to be found in some of the elementary treatises, or in the opinions of some judges, which would seem to intimate a different opinion." The discharge of a jury in cases of felony, without verdict, where they were unable to agree, is not a bar to a second trial. The propriety of the discharge rests entirely in the discretion of the court, and will not be reviewed. (People v. Olcott, 2 John. Cas. 301. People v. Green, 13 Wend. 55.) No form or particular ceremony is essential to the discharge of the jury. It appears by the plea, that the jury retired to deliberate on their verdict on the 19th day of December, in the custody of a sworn officer. That on the following morning the court duly assembled, as likewise did the jurors, and thereupon an order was entered in the minutes that the jury not being able to agree, were discharged, and that thereupon their names were returned to the jury box, other causes were tried, and the court adjourned sine die on the 23d day of December. It is submitted that the functions of that jury were lawfully suspended by the court. (People v. Thompson, 2 Wheeler C. C. 473.) The only exception to be found to the rule that the plea of once |