The People v. Reagle. prisoner then being in jail, ascertained upon inquiry of the jury that they had not agreed, and that there was no probability of their agreeing; and the said judge thereupon discharged the jury from further deliberation in the case, and they did thereupon separate. That on the following morning the said court of oyer and terminer duly assembled, as likewise did the jurors in attendance upon. that term of the court, in this case. And that thereupon the clerk of said court entered in the minutes of said court, kept by him in said case in the usual form, the statement that the said jury not being able to agree on their verdict, were discharged by the court, (which minutes were thereafter and at the succeeding term of the court of oyer and terminer ordered to be corrected by adding thereto the statement that the said jury was so discharged by the presiding judge in the absence of the two justices of the sessions.) That the names of said jurors were returned to the jury box for the court, and said court continued in session; other causes were tried, and the said court adjourned sine die on the 23d day of December, 1870. That no other or further proceedings were had in this case. And the defendant averred that he had once been put in jeopardy, in manner and form aforesaid, upon said indictment, and ought not to be tried again thereon. To this plea a demurrer was interposed by the district attorney, in behalf of the people. The said court of oyer aud terminer, after deliberation, sustained the said demurrer, and held it sufficient in law, and then and there overruled the plea aforesaid, to which the prisoner's counsel excepted. The prisoner was then put upon his trial on the said indictment, and the jury, after hearing the evidence, found him guilty. Whereupon the prisoner, by his counsel, moved in arrest of judgment and for the discharge of the accused, upon the grounds stated in the prisoner's plea aforesaid, and the admitted facts in support thereof, allegVOL. LX 34 The People v. Reagle. ing that no valid judgment could be pronounced upon the verdict of the jury. The court denied the motion in arrest of judgment, and the counsel excepted. Judgment was stayed until the decision of the Supreme Court should be made, upon the exceptions. Box & Perkins, for the defendant. I. 1. "Courts of oyer and terminer of the respective counties, except in the city and county of New York, shall be composed of a justice of the Supreme Court, who shall preside, and the county judge and the justices of the peace, designated as members of the court of sessions; and the presiding justice and any two of the other officers above mentioned shall have power to hold said courts; and said courts shall be held at the same times and places that circuit courts of the same county shall be appointed to be held." (3 R. S. p. 295, § 9, 5th ed.) No other persons than the officers above mentioned, nor either one of these officers, in the absence of the other two, can be said to constitute a court of oyer and terminer, or in any instance exercise the functions of that court. 2. After the jury retired in charge of the officer, the court received no communication from them as to whether they had agreed upon a verdict, or disagreed, or as to any special cause why they should be discharged. The court never called the jury before it, in the case, and could, therefore, exercise no discretion in the matter; there were never any facts before the court, upon which it could act. The jury were discharged at the conclusion of the other business before the court, before they had rendered a verdict in the case, and without any cause which would authorize the court in its discretion so to discharge the jury. This was an arbitrary discharge before a verdict had been rendered, and the prisoner should not be subject to another trial. 3. This was not what has been termed a mistrial, like the cases referred to in Shepherd v. The People, (25 N. Y. 406,) The People v. Reagle. or like the case of Cancemi v. The People, (18 id. 128,) and similar cases where there has been a defect in the organization of the court, or in empanneling the jury; in these cases there never had been any trial at all by a tribunal competent to render a judgment; neither was there any misconduct on the part of the jury. It was an erroneous assumption of authority on the part of the presiding judge; but after he had assumed it, the responsibility was with him and not with the jury. From his relation to them as a member of the court, they look to him for advice and instructions, and it is not only their right, but their duty to act upon his advice, and receive his instructions in all questions of law, and as to the manner of proceeding in cases, under the charge of the court. 4. Here is a duly organized court, a jury properly empanneled, a legal trial, and the court discharged the jury before they had rendered a verdict, and without any cause shown to the court why a verdict should not be rendered. Can the prisoner be again put upon trial upon the same indictment, and for the same offense? 5. There is some very respectable authority against the practice of putting a prisoner, indicted for felony, upon his second trial, where the jury had been. discharged by the court, on the first trial, without rendering a verdict. Among the cases most ably presented and thoroughly considered upon this point are Conway v. The Queen, (7 Irish L. R. 149;) in the State of Alabama, the case of Weed v. The State, (7 Porter, 187 ;) in the State of Virginia, the case of Williams v. The Commonwealth, (2 Grattan, 567,) where the matter was well considered, in 1845, decided that such a discharge of the jury was an acquittal of the prisoner. 6. Although this rule has been somewhat modified by later cases, especially in this State, still the discharging of juries in criminal cases, especially in cases of felony, before they have rendered their verdict, is a very "delicate and highly important trust," and the authority can only be exercised by the court in its legal dis The People v. Reagle. cretion "in cases of absolute and extreme necessity," and should always be exercised with the greatest care. The rule laid down by Kent, J., in delivering the opinion of the court in the case of The People v. Olcott, (2 John. Cas. 307,) has been frequently quoted and approved in subsequent cases, and seems to be the law upon this subject at the present time, in this State. The learned justice said: "Every question of the kind must rest with the court, under all the particular or peculiar circumstances of the case. There is no alternative; either the court must determine when it is requisite to discharge, or the rule must be inflexible, that after the jury are once sworn and charged, no other jury can, in any event, be sworn and charged in the same case. The moment cases of necessity are admitted to form exceptions, that moment a door is opened to the discretion of the court to judge of that necessity, and to determine what combination of circumstances will create it." In the case of The People v. Goodwin, (18 John. 200,) Chief Justice Spencer, in delivering the opinion of the court, (page 203,) quotes with approval, the dictum of Justice Kent in the case above cited. In the later case of The People v. Green, (13 Wend. 57,) Chief Justice Savage, in delivering the opinion of the court, also quotes, with approval, the dictum of Justice Kent above cited, and holds it to be the law. In the later case of Grant v. The People, (4 Parker, 527,) Rosekrans, J., delivering the opinion of the court, cites with approval, the rule laid down in the above cases, and further says, (page 633) "When a jury are unwarrantably discharged it is equivalent to acquittal. The case, to warrant the discharge of a jury, must be one of uncontrollable emergency." This question is discussed at considerable length in Bennett & Heard's Leading Criminal Cases, (vol. 2, p. 366,) with very full references to decided cases upon the subject, in a note, at the conclusion of the opinion, in the case of the U. S. v. Perez. 7. In some of the other States, where the The People v. Reagle. old rule first above referred to has been modified, they seem to have adopted the same rule as the courts in our own State, and the language of Justice Kent above cited is approved. In the case of Poage v. The State, (Ohio State R. 3 Warden & Smith,) the indictment charged forgery of a promissory note. After the case had been submitted to the jury, and they had retired to deliberate, a note was sent by one of the juryman to the judge, stating that they were unable to agree, and that one of them was not a naturalized citizen, and asking if they could be discharged. The jury were called into court and discharged, without it appearing, from the records of the court, that any communication had been received from the jury that they had disagreed, or were unable to agree, of which the court could take judicial notice; or that any one of them. was unqualified. Chief Justice Thurman, in delivering the opinion of the court, said: "If we find that no case arose for the exercise of discretion, it will be unnecessary. to inquire whether we have any power to review a legal discretion." Further on he says: "Now it does seem to us that this was no case for the exercise of that delicate and highly important trust' that only exists 'in cases of absolute and extreme necessity;' and were we to sanction what has here been done, it would allow to a judge an absolute and uncontrollable, instead of a legal discretion." Ranney, J., in delivering the opinion of the court, said: "As a discharge without a sufficient reason is an acquittal, it must appear from the record, to justify holding him to a further trial, that an obstacle, which the law will recognize as a necessity, did, in fact, exist; that it engaged the attention of the judge; that his order was based thereon, and was the result of consideration and decision." (Dobbins v. The State, 14 Ohio R., Critchfield. Miller v. The State, 8 Indiana, 325. Wright v. The State, 5 id. 290.) 8. All the authorities agree in holding that the cause for discharging a jury after they have retired to deliberate, |