in this case, the guilt or innocence of the prisoner is as little the subject of enquiry, as the merits of any case can be, when it is brought before this Court on a collateral question of law. Although the prisoner, if unfortunately guilty, may escape punishment, in consequence of the decision this day made in his favor, yet it should be remembered, that, the same decision may he a bulwark of safety to tiiose, who, more innocent, may *494become tiie subjects of persecution, and' v/hose conviction, if not' procured on one trial, might be secured on a second or third, whether they were guilty or not.
It is laid down by Lord Coke, that the life of a. man shall not be twice put in jeopardy upon the same charge, for a capital offence. (3 Inst. 110. 1 do. 227. Foster 16, 22, 30). In this maxim is manifested the great concern which the law has, for the security of the lives of its citizens. If is intended as a barrier against oppression and persecution; and although it must have been known to (he wisdom of the law, that it would be a mean by which the guilty may sometime escape from merited punishment, yet it was thought better to adopt it, than to leave it to the discretion of a Judge to award a second trial, when the Jury, in whose hands the life of the prisoner had been placed on the first trial, did not return a verdict.
Í* From the record in this case, it appears, that a Jury was sworn and impan riel led to try the, prisoner, on the charge contained in the indictment, but-they failed to re)turn a verdict. This was a Jury of the prisoner’s own f choosing, and one too, to which the State did noc object. ( When the Jury were thus charged with the prisoner, ho vcertainly stood upon his trial — his life was jeopardized.
ÍFrom this maxim there are some exceptions, but such exceptions as are under no human control — they are the offspring of necessity ; as where a Juror is taken sud- ' denly sick, where a woman is taken in labour, where the prisoner becomes insane, or where the Jury are discharged by consent of the prisoner, or at his request.
The record states, that the Jury were impanneiled in the case, but it assigns no' reason why a verdict was not returned by the Jury, and it would be worse than preposterous to say, that this Court can be governed by any thing else than the record, it is true, like other individuals, we are informed of the reason why the Jury did not return a verdict; that the term of the Court expired *495before they had an opportunity of doing so. Let it be supposed that this fact was spread upon the record : it - rr ■ i . . . is certainly an event which might have been guarded against, though it was a case not without its difficulties. The trial might have been brought on sooner in the term. The Jury might have been directed to withdraw, and consider of the evidence after it was given in, and this the sooner, if the prisoner refused to consent to withdraw a Juror. I beg to be understood as laying down no rules for the government of the Courts ,• I am not competent to do so ; if I was, it would not become me. But I am proving that the reason, why the Jury did not return their verdict, was an event which might have been guarded against; that it was not founded on uncontrollable necessity, and if it was not, it forms no exception to the maxim, that a citizen shall not be twice put in danger of his life upon the same charge, for a capital offence.
But this is not the first time this question has arisen in this State, it was decided in the case of,the State v. Garrigues, (1 Hay. 241,) for murder, in the Superior Court of Halifax, in the year 1795. There the presiding Judge retired from the bench, but did not adjourn the Court, and the Jury having been impannelled in the case, separated without giving any verdict. It was held by Williams and Haywood, that the prisoner could not be put upon his trial a second time. The record there, and the record in this case arc alike. In both cases, it appears that the Jury were impannelled, but returned no verdict.. It is true we learn, like other individuals, that the reason why they returned no verdict in the one case was, that they could not agree $ in the other, that the term expired before they considered of their verdict. But in both cases the record shows, and shows nothing else, that they were impannelled, and returned no verdict before the expiration of the term. It is certainly a difficult task to distinguish, on principle, the one case from *496the other. I may add that tiiat opinion dr *.w after it the approbation of the profession, and I believe I shall not rl 1 treat with disrespect the memory of the dead, or thepre-tensions of the living, when I say that a greater criminal lawyer than Judge Haywood, uever sat upon the bench in North-Carolina.
It is stated in Hale, that die practice was once other-wi-e; that where (he, prisoner was put upon his trial, the Court might discharge the Jury, if it appeared that the evidence was not sufficient to convict him, and remit him to jail for further evidence. It is stated however, in a note in the same book, ttiat the practice is now otherwise j that a Jury once charged in a capital case cannot be discharged, until they have given their verdict, and Judge Haywood says, in the State v. Garrigues, that “this power was exorcised for the benefit of the Crown only, but is a doctrine so abhorrent to every principle of safety and security, that it ought not to receive the least countenance in the Courts of this country,” And Haywood is sustained in this opinion by Foster, who wrote long since Judge Hale. I say therefore, in the present case, it was not in the power of the Court to discharge the Jury, unless for the intervention of some cause, that could not be foreseen or controlled.
I admit, that if the Jury had been charged upon an indictment, which was in itself defective, so that judgment could not be given upon it, although the prisoner was found guilty, it would be no bar to a second trial j because although such feelings of danger might have been awakened as are incident to human nature, and which such occasions are naturally calculated to excite, yet in reality, the prisoner ran no risk ; he was in no danger —he was tried as if upon no indictment. But in this case, thereJs no objection to the indictment. If the prisoner had been found guilty, he must have suffered the penalties of the law. He was placed upon his trial— his life was in the hands of the Jury. His breast was *497occupied by a commixture of hope and fear; it throbbed alternately with both, and whether the struggle termi- , . ,. , ,. , in* ted in a verdict or guilt or innocence, it was certainly a guarantee against arty future prosecution upon the same charge, and that guarantee need not claim 10 be bottomed upon any extraordinary maxim, marked with tenderness for the life of man. It is a plain principle of municipal jurisprudence, regulating ordinary cases of property between man and man. It does riot constitute the maxim, that a man’s life shall not be twice put in jeopardy for the same, thing, to which Lord Coke, Foster, and others, fathets of tie- English criminal law, have given the sanction of their names.
The prisoner has been brought up, on the return of a Habeas Corpus, and now moves for* bis discharge, or to be admitted to bail, on the ground that his life lias been once put in jeopardy for the same offence, for which he now stands committed for trial.
The transcript of the record accompanying the return, discloses only the fact, that the prisoner was put upon his trial for the murder of Williams. and that no verdict was returned by the Jury. An affidavit was annexed, which though ex parte, states other facts, which have riot been controverted at the bar, and which, therefore, it may be taken for granted, are correct. These are, that the trial began on Friday morning; that in the course of it, the witnesses on both sides were examined, the Counsel on the part of the State heard, and that while the Counsel for the prisoner was addressing the Jury, the hour of twelve of Saturday night arrived, of whirh the Judge gave notice to the parties, and then left the bench.
The case has been ably argued on both sides, and certainly a more important principle could not be brought into discussion, whether we view7 on one side, its con-nexion with the interests of public justice, or on the other, the important bearing it has on the personal seen-* *498¡-¡fy 0f the citizens, and theii- immunity from undue pro-sedition. As it is a case in which a Court has no discretion, but is bound to yield obedience to the law, without regard to consequences, it is of primary importance to ascertain, amidst the conflict of opinions, on which side the weight of principle and authority rests.
A wr iter of established reputation on the criminal law-remarks, that it seems to have been anciently an uncon-troverted rule, and bath been allowed, even by those of a contrary opinion, to have been the general tradition of the law, that a Jury sworn and charged in a capital case, cannot be discharged without the prisoner^ consent, until they have given a verdict. It is added, that notwithstanding some authorities to the contrary, in the reign of Charles the 2d, this hath been holden for clear law, both in the reign of James the 2d, and since the revolution. (2 Hawkins, 619.) Lord Coke, who is cited as authority for the general position, lays it down in still broader terms, and so as to render the discharge of the Jury in treason, felony, or larceny, illegal, even with the consent of the prisoner. (3 Inst. 110.)
Much more modern authorities have introduced the exception, where the discharge takes place with the prisoner’s consent and for his benefit; and this being reasonable and just, may be considered as now well settled.
In the remarkable case of the Kenlocks, reported by Foster, that eminent Judge endeavors to prove, that the case quoted by Coke, from the year book of Edward the 3d, does not show that the Jury was sworn, but only that they were in Court, and the party arraigned. But Fit%-herbert in his abridgement, understands the case in the same way with Coke; for he alleges, that the reason of the judgment was, that the inquest having been once charged, could not be discharged. A majority of the Judges in that case admitted the authority of the rule, as a good general one, but not as practically applicable to those cases, where it would produce great hardships, or *499manifest injustice to the prisoner. ‡,1« the case quoted, the power of the Court to discharge the Jury, With the prisoner’s consent, seems to have been for the first time well considered ; and they rejected with just sion the authority of those cases, which had occurred in that period of misrule and persecution, preceding the volution. In one of these, the Court discharged a Jury in a capital case, after evidence given on the part of the Crown, merely for want of sufficient evidence to convict, and in order to bring the prisoner to a second trial, whpn the Crown should be better prepared! in another, where the prisoner, unassisted by Counsel, consented to his own prejudice, that the Jury might be discharged.
These stains upon the administration of justice show to what extremes, in a state of civil discord, the passions of men urge them to trample upon the most salutary principles of law ; and in what degree Judges, holding their office at the will of the sovereign, were eager to pander to his appetite for blood and forfeitures.
Certain exceptions have been incorporated with the rule, by such authority as we are not at liberty to reject, even if we were inclined to do so ; but. we cannot add to these exceptions without authority, unless the reason fin* them is equally forcible and conclusive. If the discharge take place with the prisoner’s consent, and for his benefit, or where it is occasioned by an overruling necessity, beyond the reach of man’s foresight and control, it cannot be the instrument of injustice or oppression to the prisoner. It is impossible to lay down a general rule, which may be applicable to all cases that may occur; but to the exception sanctioned in the case of the. ICenlocks, may be fairly added that of Elizabeth Meadows, who was taken in labour during the trial. (Foster 76.) The case where the prisoner became insane, and where a Juryman fell down in a fit, (Rex v. Edwards, 4 Taunton, 309,) were decided on principles, from which I do not see that any mischief could arise. Whether that class *5000f oases, v, here the Jury have been discharged, in cnn-sequence of undue practises having been used to keep back w itnesscs, or in coti'-equeure of a Juryman’s having become intoxicated, stands upon the. same authoritative ground, i am not prepared to decide. There is danger to be apprehended b om evert exception, arising from a fact v.iiicii artifice anti cunning may simulate. As at !prc-ont advised, I think the exceptions in addition to those l h»\e mentioned, ought to be confined to those cases of extreme and positive necessity, width are dispensed by the visitation of God, and width cannot, by any contrivance of man, be made the engines of obstructing that justice, which the s.sf< ty of a!l r< quires should be done to the Slate, or weakening the efficacy of, and ren-deiiug illu-ive that maxim of civil liberty, of which the, prisoner claims the protection.
There is no case in the British authorities, resembling the one under consideration, nor is it likely any -itch will ever occur. But some cases are furnished by American reportéis, which it is proper to notice.
In Massachusetts, Boden was indicted for a highway robbery, and the Jury being ¡mpanuelhd, and having heard the. evidence, and the vv hole of the case, retired $ and after being confined the whole night and part of the day, returned into Court, and informed the Judge, that they had not agreed on a verdict, and that it was not probable they ever could agree. A Juror was withdrawn without the prisoner’s consent, and be was afterwards tried arid convicted by another Jury, and it was holdcn a good conviction. (9 Mass. Rep. 494.) It may be collected from this case, that the offence charged was not there a capital felony ; the arguments of the Counsel for the State, and the opinion oHIte Court seem to show this. The maxim of the common law, therefore, under which the prisoner seeks shelter in this ease, was not violated. "Wueth'T the cases of inevitable necessity, cited from the British books, apply to the case of discharging a Jury, *501because they say they have nut agreed, and are not likely to agree, appears to me questionable. Juries very ofter! agree, after thinking and saying they could not agree, If the Court possessed a discretionary power to discharge a Jury in a capital case, upon their saying they could not agree, it is to be apprehended, that very slight en-} de’avors would be made among them, to reason with and' enlighten each other; and that a disposition would prevail‘to escape from a duty, which every man considers painful. But. the difficulties and disadvantages, under which the prisoner would enter upon his second trial, would probably expose him to increas- d danger.
It. must be conceded, that the case of Goodwin, (18 Johns. 200) if lightly, decided, is an authority against the prisoner iu tins case ; lor although the offence charged was not a capital felony, yet the reasoning extends the whole length of showing, that the Jury may be discharged in any case, and the prisoner tried again. The distinguished Judge who delivered the opinion of the Court in that case, thought the rule which declares that no person shall be subject for the same offence, to be twice put in jeopardy of life or limb, means that no person shall be tw ice ti ied for the same offence. But I cannot acquiesce in this opinion, for^St would seem strange that a familiar maxim of the common law, admitted for ages, without denial or controversy, should require a solemn constitutional sanction for the more effectual protection of the citizens. The pleas of “ heretofore convicted” and “heretofore acquitted” are interwoven with our criminal law, as essentially as the pleas of former judgment between the same parties, or the pendency of another suit for the same cause, are with our civil law. Could the amendment to tiie Constitution of the United States mean no more than this, when it provided that “ no person shall he subject, for the same offence, to he twice put in jeopardy of life or limb ?” Did the Constitutions of several of the Slates mean no more, when they *502adopted tije same article ? As the common law of every state already protects the accused against a second trial, , . ,. ,. , . . ,. „ only lu crimes oí alt descriptions, but in questions ot c|v'ii right, it is to be inferred that the Constitutions meant much more, and that their design was to protect the accused against a trial, where the first Jury had been discharged witiiout due cause.
“Twice put in jeopardy” and “twice put on trial,” convey to the mind several and distinct meanings, for we can readily understand how a person has been in jeopardy, upon whose case the Jury have not passed. The danger and peril of a verdict do not relate to a verdict given. When the Jury are impannelled upon the trial of a person, charged with a capital offence, and the indictment is not defective, his life is in peril or jeopardy, and continues so throughout the trial. And this is the legal understanding of the term, as explained by Mr. Justice Foster, in the case of the ICenlocks. “ The discharge of the Jury was not to bring the prisoners’ lives twice in jeopardy, (which is one great inconvenience of discharging Jurors in capital cases,) but merely in order to givi them one chance, for iheir lives, which it was apprehended they had lost by pleading to issue.” This is a full admission that one ine^ivenietice of discharging theJury is to put the prisoner twice in jeopardy $ which he could not be if a trial were meant. The same meaning is ascribed \¿to the expression by Gh'itty, in his Criin. Law. (1 vol. 63.)
^ Besides those cases, in which Juries may be discharged from the casual circumstance of illness, there are some others in which the Crown, at least by the consent of the prisoner, is at liberty to withdraw a Juror, in order to indict him again, or put off his trial. Thus it is laid down, that to let him into a ground of defence, which he could not otherwise have taken, before evidence given, the Court may by consent discharge the Jury; hut it does not seem the piosecutor has the right to bring the-prisoner twice into peril of Ms life. In the same light, *503has the subject been viewed in the Supreme Court of Pennsylvania, in 6 Sergeant and Rotule, 6 ; and finally, I thought the law in this State to have been settled £>r thirty years, ever since the case of the State v. Gurrigucs, (1 Tlayw. 24],) conformably to which decision, other cases have occurred of a similar kind, though not reported.
Under this impression of the subject, I do not feel the authority of the law, to add this additional exception to the rule, since the trial of a pi isoner, its conduct and duration, arc under the direction and control of the Court and Counsel, who may in general foresee, or make a reasonable conjecture as to the time it may occupy. It would be a rule, subject in its very nature to operate.oppressively to the prisoner, without any exterior agency, or the influence of sinister design. But it would be still more capable, if such were present, of being made an engine of persecution. Not that títere is reason to apprehend any such influence, in the present tranquil state of the country, and under the existing purity of the administration of justice. But a rule, established in such times should be calculated to protect men when strife prevails, and the. angry passions are let loose ; for it cannot be foreseen what may ensue in future; and the law, as now established, must be the rule for posterity, unless the legislature should think proper to interfere. Should the rule, according to this opinion, facilitate the escape of some guilty persons, the addition of their exceptions might, in other times, lead to the punishment of innocent persons ; and we are admonished by the law, that it is better that ten guilty persons escape, than that one innocent suffer. My opinion consequently is, that tile prisoner cannot be tried again on this charge.
By the Judges. — It seemeth to us that the said Robert Spier is detained in prison to be tried on an indictment, &c.; that on the said indictment the said Robert hath already been tried; that the said Robert cannot be *504lawfully tried again upon the same indictment, nor for the same offence. Therefore it is ordered by us that uu-on the saiit Robert entering into recognizance, &c. to appear. &<-. the said Robert shall be wholly released and discharged.
J. L. TAYLOR.
JOHN HALL.
L. HENDERSON.