The opinion
Cullen, C. J. (dissenting) :
I vote for the reversal of the order appealed from. Though originally the common law was different, it became the settled law of this state, prior to the enactment of the Code of Criminal Procedure, that the time at which a jury, which after consideration of a case had been unable to agree upon a verdict, was to be;
*124
discharged solely in the discretion of the trial judge. This was so held by the old Supreme Court even where the jury had the case under advisement for a period of only thirty minutes. (People v. Green, 13 Wend. 55 .) Such is also the conceded law in the United States courts. The learned counsel for respondent cites some declarations in Grant v. People (4 Parker’s Crim. Rep. 527), but there is nothing in that case in conflict with the Green case. On the contrary, the Green case is cited with approval. But the plea of the defendant was sustained because it alleged that the discharge of the jury was arbitrary “ where no circumstances exist calling for the exercise of the discretion of the court,” and the validity of the plea, as a plea, was to be determined by its face and not by the proofs offered to sustain it. The question is, therefore, whether section 428 of the Code of Criminal Procedure, which provides that “After the jury have retired to consider of their verdict, they can be discharged before they shall have agreed thereon only in the following cases. * * * 2. When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict,” has altered the common-law rule. USTo such intent should be ascribed to the legislature unless the language of the section is express to that effect. The language of the Code is, “ they shall declare themselves unable to agree upon a verdict.” The jury was asked wheher it had agreed upon a verdict, and the foreman responded: “Not as yet.” This was a clear declaration that at the time the response was made the jury was unable to agree upon a verdict. What the section calls for is not any declaration from the jurors as to their belief, expectation or hopes that in future they may be able to agree, but for a present fact and existing condition. Let us see where the doctrine which has prevailed below will lead. Suppose that, though the jury is not able to agree, some of the jurors think they may be able, after future deliberation, to agree, while others entertain a contrary view;. What action
*125
can the court take ? Must the jury be unanimous in their belief as to inability to agree and may one dissenter keep the jury out indefinitely at his election, or shall the court poll the jury, and is the question to be decided by a majority, contrary to the usual rule which requires the action of a jury to be unanimous ? It is true that case is not before us, but a great part of the difficulties in which at times courts find themselves involved arises from failure to look forward and see what will be the result of the rules of law they declare.
Vann, Werner and Willard Bartlett, JJ., concur with Ohase, J.; Hiscock, J., concurs with Cullen, Oh. J.; Haight, J., absent.
Order affirmed.
NOTE ON DISCHARGE OF JURY BEFORE VERDICT AS EFFECTING FORMER JEOPARDY.
GENERALLY.
At English Common Law, whenever any evidence whatever had been given, the jury could not be discharged, unless in cases of the utmost necessity, until a verdict had been rendered. Poster Crown L. 27.
A manifest necessity for the discharge of the jury must exist, and it is left to the courts in their discretion to decide whether such necessity exists under the circumstances of each particular case. Canter v. People, 1 Abb. Dec. 305.
Where the jury is discharged for a reason insufficient in law and without an absolute necessity for it existing, such discharge is held to be equivalent to an acquittal, and it may be pleaded in bar to a subsequent prosecution for the same offense. King v. People, 5 Hun, 297 .
The discharge of a jury, in a criminal case, without agreeing on a verdict, is a matter resting in the sound discretion of the court in which the trial is had; it seems that the power of the court should be exercised with the greatest caution. People v. Green, 13 Wend. 57 .
The courts are to exercise a sound discretion on the subject; and it is
*126
impossible to define all the circumstances "which would render it proper to interfere. To be sure, the power ought to be exercised with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, the court should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But after all, they have the right to order the discharge. U. S. v. Perez, 9 Wheat. (U. S.) 579.
DEFECTIVE INDICTMENT.
If it is discovered on the trial that the offense is charged as of a date subsequent to the indictment, the jury may be discharged, and it is not an acquittal. Johnson’s Cas., 5 City Hall Rec. (N. Y.) 103.
FAILURE OF JURY TO AGREE.
The discharge of the jury, after full consideration of the case and a failure on their part to agree, and there being no reasonable expectation that they will come to an agreement, held not to effect a bar to another trial, this holding being placed on the ground that such a condition of affairs constitutes urgent and absolute necessity, and justifies the court in ordering the discharge of the jury. People v. Olcott, 2 Johns. Cas. 275 .
If the jury after deliberating so long on the prisoner’s case as to preclude a reasonable expectation that they will agree upon a verdict unless compelled to do so by famine or exhaustion, they may be discharged, and the prisoner again tried by another jury. People v. Goodwin, 18 Johns. 187 .
JUDGE’S 'ILLNESS.
Where illness of judge causes discharge of jury after latter has been impanelled and sworn, the accused cannot plead former jeopardy. Nugent v. State, 4 Stew & P. (Ala.) 72.
Where, after a trial was begun, it was so continued from day to day and other eases were disposed of, and on the adjourned day the jury was discharged on account of the illness of the presiding judge, the discharge amounted to an acquittal and was a bar to a subsequent trial. Ex parte Ulrich, 42 Fed., 587 .
JUROR’S DISQUALIFICATION.
Where the jury is discharged after the beginning of the trial because of . the disqualification of a juror there is neither an acquittal ndr former jeopardy, even though the defendant offers' to waive such disqualification
*127
and to proceed with the remaining jurors, or with other jurors drawn from the panel to make up the legal number. People v. Damon, 13 Wend. 351 .
The discharge of the jury after arraignment, but before any evidence has been received, because of the disqualification of the jurors, and the subsequent impanelling of a new jury, does not entitle the accused to plead former jeopardy. Watkins v. State, 60 Ga. 601 .
JUROR’S ILLNESS.
Where a juror’s statement as to his illness is not made under oath and no medical evidence is heard on the subject, a discharge is held to be improper, and a bar to a subsequent indictment and trial. Rulo v. State, 19 Ind. 298 .
The discharge of the jury and the postponement of the trial in a criminal action because of the illness of one of the jurors incapacitating him from performing his duties is authorized, and a plea of former jeopardy cannot be based upon such discharge and postponement. People v. Smith, 172 N. Y. 210 .
SEPARATION OF JURY.
Where, after the jury has retired, they separate, they may be discharged and a new jury sworn. People v. Reagle, 60 Barb. 527 .
Where, with the consent of the accused, the jury is permitted to separate before they retire to consider their verdict, and on reassembling it is found that one of them is missing, and the jury is thereupon discharged for such cause, the defendant may subsequently plead former jeopardy. State v. Ward, 48 Ark. 86 .
Where the jury was discharged on motion of the State because they had eeparated after being sworn, but before evidence had been taken, the defendant might be subsequently tried for the same offense. State v. Costello, 11 La. Ann. 283 .
WHEN ACCUSED ABSENT.
The accused having a right to be present during the entire trial, an acquittal is worked by the discharge of the jury in his absence, for whatever cause. State v. White, 19 Kan. 445 .
But if the absence of the accused is caused by his flight during the progress of the trial, the jury may then be discharged, and he may be subsequently reindicted. State v. Battle, 7 Ala. 259 .
*128
Right of accused to be present when the jury is discharged, may bet -waived by his counsel. People v. Smalling, 94 Cal. 112 . The contrary .held. Cook v. State, 60 Ala. 39 .
"WITNESS’S ABSENCE.
Where defendant has pleaded, and the district attorney finds himself unprepared with evidence, owing to the absence of a material witness, and therefore withdraws a juror against the objections of the defendant, the latter cannot be again tried. People v. Barrett, 2 Cal. (N. Y.) 304.
The rule is based sometimes on the fact that the accused has been in jeopardy, and sometimes on his right to a speedy trial, but it is a sound rule that the discharge of the jury under such circumstances operates asi san acquittal. Klock v. People, 2 Park. Crim. 876.