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This Work comprises a carefully-revised Edition of Mr. Kerr's Procedure Acts of 1852 and 1854, the Cases that have been decided since the publication of these Works being added; the Bills of Exchange Act of 1855, and the Decisions upon it; those portions of the Interpleader Act and Mercantile Law Amendment Act which relate to the Procedure thereon in Court or at Chambers, and all the New Rules: thus constituting a complete Practice of the Superior Courts of Common Law. H. Sweet, 3, Chancery-lane, Fleet-street. THE JURIST. LONDON, OCTOBER 14, 1865. DISCHARGE OF THE JURY IN CAPITAL THE judges, in the ensuing term, will probably have to consider one of the weightiest questions which can arise in criminal procedure; whether, in a capital case, after the evidence has been closed, and the jury have considered of their verdict, they can, without any illness or physical necessity-and merely because they are not agreed-be discharged, with a view to a new trial on a future occasion. We believe we can venture to say, that if it is held that this can be done, it will be the first time it has been so held; although we are all quite aware that it will not be the first time it has been done. Indeed, there is an impression abroad, that it has been decided that it may be done, but this is a mistake; on the contrary, the authority of any decision, so far as it goes, is rather the other way; and the point certainly may have been decided by a Court of Error, the only Court that can possibly settle it. In the case which is supposed to have settled the question, it was not determined at all; all that the Court decided was, that they had no authority to determine it. That case was Reg. v. Newton (13 Jur., part 1, p. 606). The marginal note of that case goes beyond the actual decisions, and may have been misunderstood. It states it as held, that where a prisoner has been put upon his trial for a capital offence, and the jury, after the lapse of a reasonable time, are unable to agree in a verdict, it is in the discretion of the presiding judge to discharge them, if he thinks a case of necessity for so doing is made out. (Reg. v. Newton, 13 Jur., part 1, p. 606; 18 L. J., M. C., 201). "The fact of a jury having been locked up from two P. M. to eight A. M. on the following morning, and there then being no prospect of their agreeing, and the duty of the judge requiring his presence at the next circuit town on that day, is a sufficient case of necessity to justify the discharge of the jury. (Ib.) the record; and in a criminal case there must be the fiat of the Attorney-General, which, in such a case as the present especially, as the prisoner has already been respited, will no doubt be granted. There are three other recent cases in which a somewhat similar question has been raised; but they none of them settle it, and all leave it still undetermined. Two out of the three, Reg. v. Davison (2 Fost. & F. 250) and Reg. v. Charlesworth (1 B. & S. 460), were cases of misdemeanour, and the other, Reg. v. Conway (7 Ir. Law Rep. 147), which was a case of felony, was a decision that the discharge of the jury was, at all events, in the particular case, improper; so that anything said in favour of the contrary view was obiter. That case so far resembled the present that there, as in the present, the jury were discharged because they could not agree on the day before the commission had to be opened at the next county, whereas, here, it was two days before. The ground of the discharge in both cases was the same, viz. the nearness of the assizes for the next county; the difference was only in degree, and, of course, would make no distinction in principle. So the learned judge thought in the present case, that if there was power to discharge the jury on any such ground at all, the mere time at which it was done (there being no illness or physical necessity), as it must be a matter for the discretion of the judge, could make no difference in point of law; and we are disposed to agree with him, although certainly, in the present case, the time was as short, and the excuse as slight, as it could possibly be; for the jury had only been locked up four hours. They retired on Saturday evening, and were discharged between eleven and twelve at night, and the whole of Sunday intervened before the commission day for the next county, and, as every one knows, business does not commence until the next day. But, in truth, for different reasons, this does not matter at all in point of law; because the time could only be material in a legal view, as an evidence, or element, or necessity for the discharge; and on neither of those views, in this case, was it material. In point of fact, the jury were not ill or faint, or in any apparent danger of illness; and as to the proximity of the assizes for the next county, it was no reason at all for the discharge of the jury, because it was no reason at all for the de "The propriety of the discharge of the jury cannot be questioned on a habeas corpus; at all events until the lapse of two assizes after the committal of the prisoner, the warrant of commitment being a justifi-parture of the judge. Even if it was so, the judge cation of the detention." (Ib.) But, in truth, only the third point was in reality determined, viz. that the propriety of the discharge of a jury at the assizes could not be questioned on a habeas corpus issued by one of the Courts at Westminster, which, in effect, had already been decided. (Reg.v. Dunn, 5 C. B. 215). The courts of oyer and terminer and gaol delivery are, as was held in Reg. v. Charlesworth (1 B. & S. 406), superior courts, and cannot be interfered with by the Courts at Westminster. The only Courts to review these decisions are, at common-law a Court of Error, and by statute, the Court for Crown Cases Reserved. The latter Court has no jurisdiction unless the point has been reserved at the trial. And to bring a question before a Court of Error it must be raised on may receive the verdict in a "foreign" county; but Hawkins lays it down, the commission of gaol delivery is not limited in point of time, and the judge may wait in a county as long as necessary. For that very reason, the commission always includes in it the names of all the serjeants and Queen's counsel, who, with the other judge of assize, can easily discharge the commission in the next county, and constantly do so. The very judge who presided at the first trial in this case, Mr. Baron Channell, sat at Chelmsford a week after the business was finished to try the Roupell case, and never sat at Lewes at all; so that it cannot be pretended that there was any necessity for the discharge of the jury on that ground. The utmost that could be said is, that there was convenience; but there 14 is not an atom of authority to shew that convenience is | entitled in law; and which, at all events, she may a sufficient ground for discharge of the jury in a capital case. On the contrary, it is laid down as clear law in all the authorities, ancient and modern, that it can only be done in cases of necessity; and the only cases in which it has been held lawful to do it have been cases not only of actual physical necessity arising from illness, but of necessity arising in the course of the trial before the jury retired. (Rex v. Edwards, 4 Taunt. 309). No authority can be found in the whole annals of the English law for the discharge of the jury in a capital case after they have retired, and without physical necessity. All the instances in modern times have been instances of death or illness occurring in the course of a trial. (Rex v. Talbot, 2 Leach's C. C. 706; Reg. v. Meadows, 1 Fost. & F. 76; 2 Jur., N. S., part 1, p. 713; Rex v. Stevenson, 2 Leach's C. C. 618; Rex V. Street, 2 Car. & P. 413). That no mere difficulty in the way of a verdict arising from moral, not natural, causes will suffice, is shewn in the strongest way by the case of Rex v. Wardell (1 Car. & M. 120), where Tindal, C. J., refused to discharge a jury on the ground that one of them was found to be a relative of the prisoner. Of course, in such a case there could be no chance of a conviction, so that it comes, in principle, as near as possible to the present, which is one in which the jury said they could not agree-why, did not appear. If we may judge from what took place at the second trial, the reason was the insufficiency of the evidence; for on the second occasion one of the accused was called as a witness to complete the case against the other. We may fairly suppose that the prosecution thought there was no chance of getting a verdict on the former evidence. Then, if so, that is strong to shew that the former jury were justified in their doubts, and ought to have acquitted, and probably would have done so had they been left alone. At all events, it is possible they may have done so. And that raises the grave and weighty question, whether, in such a case, where the verdict is wanting, not by reason of illness, or any physical cause, but from doubt among the jurors, from the deficiency of the evidence, it is competent to the judge to discharge the jury, with a view to a new trial? To bring this before the mind fully and forcibly, it is necessary to bear in mind two fundamental maxims of criminal procedure-that the accused is entitled to the benefit of a doubt, and that there can be no new trial. No one ever heard a judge sum up in a criminal (at all events a capital) case, without laying down the first rule; and as to the second, every one is aware of it. It results, that if the jury really doubted, they were bound in law to acquit; and that if they had acquitted, the accused could not have been tried again. It is quite consistent with the facts, and rather more probable than the reverse, that on this occasion the doubts of the jury were sound. If so, they were bound in law to acquit. Instead of examining them, to see if their doubts were reasonable, and telling them, if they were so, to acquit, the judge simply discharged them, in order to have the accused tried again. That is, in other words, he deprived the prisoner, it may be, of a verdict of acquittal, to which, possibly, she was have obtained. And, indirectly, the prosecution had the benefit of a new trial, with the additional advantage of having the opportunity, by its being postponed, of shaping the case differently, and calling fresh witnesses. On this occasion, not only was this advantage obtained and acted upon, but the most dangerous of all witnesses (an accomplice) was called to perfect the case against the other prisoner. That this was so in the particular instance does not, of course, help the argument in point of law; but it does help to shew that such may be the consequence in any case, if such a practice is allowed. That is to say, that the mischief which the law so dreads, even in civil cases, that it will not grant a new trial to enable a plaintiff to call evidence he might have called before, may be let in, not only in criminal, but capital cases. The mischief of allowing a party to take his chance of a verdict on certain evidence, and then, on his failing to secure a verdict, trying again on different evidence, what could be more perilous in criminal cases? Yet if the jury may be discharged, and the trial put off, this is what it will come to in every case. So soon as it is seen that a jury hesitate to convict, they may be discharged, and the trial may be put off; the prosecutor can come again with fresh evidence and a new case. It is this postponement of the trial which renders the discharge of the jury more serious; and it is obvious, that if the reason assigned for the discharge is valid, it will equally avail for the postponement; for the only reason assigned was, that there was not time to consider longer of a verdict; and if so, of course, there was not time to try the prisoner again. But, on the other hand, if the reason fails for the discharge, of course it fails for the postponement; and if there was time to consider as long as was necessary, there was time to try the prisoner again at the same assizes. Or again, to reverse the way of putting it, if there was time to try the prisoner again, there certainly was no necessity for the discharge of the jury. But there certainly was time to try the prisoner again, as already has been shewn, for the simple reason, that no time is limited to the discharge of the commission at all. And, indeed, one of the points decided in Reg. v. Charlesworth was (as is laid down in Hawkins), that the commission continues until revoked, and is indefinite in point of time. If, indeed, there was a necessity for the judge to leave the county, that would only shew some default on the part of the clerk of the assize or clerk of the Crown, in not allowing time enough to try the prisoners; and that default could hardly prejudice the prisoner, or deprive her of any right. Her legal right, we conceive, was to be tried at those assizes, if it were possible, or unless she applied to have the trial put off. And the duty of the judge, as we conceive, under his commission, was clear and positive, to deliver the gaol. From that duty, which he had an indefinite time to discharge, only "the act of God or the Queen's enemies" could excuse him. An assize altogether, we are aware, may be put off for necessity; but having a jury panel, a judge cannot legally discharge them, we apprehend, until he has discharged his commission, and delivered |