[1866.] WINSOR V. The QUEEN. the case has been tried.] If a Judge may discharge the jury at his discretion, he may do it however short the time during which they have been in deliberation; and if a Judge of gaol-delivery has this power, so has a Court of Quarter Sessions. Besides if it can be done once it can be done indefinitely, so that the accused would be a prisoner for life. Another objection to the supposed right is that the discharging the jury involves the costs of a second and perhaps further trials, which, although nothing to the Crown are a serious matter to the accused. It must indeed be conceded that in a case of misdemeanour a jury that cannot agree may be discharged; Reg. v. Charlesworth (a); but the distinction is that in misdemeanour the Judge has a discretion as to the sentence; in case of murder he has none. [Blackburn J. Then you admit that the Judge can discharge the jury in a non capital felony, where he has discretion as to the sentence?] At least the consent of the accused ought to be obtained: The statute introducing the trial by jury into Scotland in civil cases, 55 G. 3. c. 42. s. 35. provides that if the jury do not agree they are to be discharged after twelve hours deliberation, unless they unanimously ask for more time (b). (a) 1 B. & S. 460. (b) This period has been reduced to six hours by stat. 22 & 23 Vict. c. 7. s. 1.; and by stat. 17 & 18 Vict. c. 59., if after six hour's deliberation, reduced to three hours by stat. 22 & 23 Vict. c. 7. s. 2., nine of the jury agree, the verdict of the nine is to be taken. In the state of Brunswick, in Germany, the verdict in criminal cases must be unanimous, but the jury are to be discharged if after twenty-four hours deliberation they cannot agree. Paper by Professor Mittermaier, presented to the French Academy in July, 1854, entitled "Memoire sur les Progrès de la Législation Allemande, en matière de procédure criminelle, &c.," p. 368. Where a limit of time is presumptively fixed by law, a corrupt juror who wants to prevent a verdict being given has only to engage his fellows in harassing discussion until the time has expired. [1866.] The WINSOR V. Secondly. Even supposing the Judge had the power claimed, here was no just reason for its exercise. time allowed to the jury for consideration was very The QUEEN. short, and if more time had been granted they might have acquitted the accused. [Blackburn J. Or convicted her.] Here was ample time for the Judge to reach the next county, and if there were not, the Commission might be opened then by another of its members. In a case of misdemeanour Lord Ellenborough once refused to discharge a jury after fifteen hours deliberation, and in Reg. v. Newton (a) the jury had been locked up for a night. The record assigns as an additional reason for the course taken by the Judge that the Lord's Day was close at hand: but he ought to have adjourned the case either until Sunday morning, or Monday morning, leaving the jury in the charge of the sheriff; during which time they might have been allowed refreshment. [Blackburn J. Can that be after they are charged?] Rex v. Locke (b) shews it can. [Lush J. referred to the oath of the bailiff who takes charge of the jury.] "Before the stat. 29 Car. 2. c. 7. all ministerial acts upon a Sunday were unlawful, though not judicial;" Com. Dig. Temps. (B 3 ;) now taking a verdict is a ministerial act. In Morris v. Davies (a), Gaselee J. took the verdict on a Sunday. [Blackburn J. In Coke's time, long before those authorities, Sunday was known to be dies non juridicus; Co. Lit. 135. Lush J. Could sentence be passed on Sunday ?] It can on Good Friday. The Exchequer formerly sat on a Sunday when necessary, Madox's Hist. of Exchequer, 551, ed. 1711 and in Swan v. Broome (b), Lord Mans(a) 3 Car. & K. 427. (b) 3 Cr. & Dix. Irish Circuit Cases, 393; see ad id. Morris v. Davies, 3 Car. & K. 90, note (e). (c) 1 W. Bl. 496, 499, [1866.] field mentions that he sat in Parliament on Sunday (a). [Blackburn J. I do not think it follows that judicial business may be done on that day.] WINSOR V. The QUEEN. Thirdly. When the jury trying a prisoner have been improperly discharged, he can never be tried again; Conway and Lynch in error v. The Queen (b), Rex v. Emden (c) for no person is to be put twice in peril, the maxim being "Nemo debet pro unâ et eâdem causâ bis vexari." [Blackburn J. The term "peril" must be understood to mean legal peril. In its popular signification a man may be said to be in peril even when arraigned on a bad indictment.] There is authority on this subject. In 3 Inst. 110, "To speak it here once for all, if any person be indicted of treason, or of felony, or larceny, and plead not guilty, and thereupon a jury is returned, and sworn, their verdict must be heard, and they cannot be discharged, neither can the jurors in those cases give a privy verdict, but ought to give their verdict openly in Court." Co. Litt. 227, b, “A jury sworn and charged in case of life or member, cannot be discharged by the Court or any other, but they ought to give a verdict.” 2 Hale P. C. 294, "By the antient law, if the jury sworn had been once particularly charged with a prisoner, as before is shewed, it was commonly held they must give up their verdict, and they could not be discharged (a) There cannot be the least doubt that for legislative purposes, Parliament may sit on the Lord's day. May, Parliamentary Practice, 43-4, 216, 5th ed. An instance has occurred since this case of Winsor v. Reg. namely, the Act of the present Session, 29 Vict. c. 1, for suspending the Habeas Corpus Act in Ireland, received the Royal Assent after 12 o'clock on Saturday night; and we believe the bill on which the Reform Act, 2 W. 4. c. 45. was founded, was read a second time in the House of Commons after that hour. (b) 7 Ir. Law Rep. 149. (c) 9 East 437. before their verdict given up, and so is my Lord Coke P. C. cap. 47, p. 110, and this is the reason given 22 Ed. 3, Coron. 449, why after the plea of not guilty, and the inquest charge, the prisoner cannot become an approver, because the inquest shall not be discharged; but the book at large, viz. 21 Ed. 3. 18 a, mentions not the charging of the inquest, but the plea of not guilty and the jury at the bar. Co. Litt. 227, b. But yet the contrary course hath for a long time obtained at Newgate, and nothing is more ordinary than after the jury sworn, and charged with a prisoner, and evidence given, yet if it appear to the Court, that some of the evidence is kept back, or taken off, or that there may be a fuller discovery,and the offence notorious, as murder or burglary, and that the evidence, though not sufficient to convict the prisoner, yet gives the Court a great and strong suspicion of his guilt, the Court may discharge the jury of the prisoner, and remit him to the gaol for farther evidence." His editor Emlyn adds in a note, p. 295, " And so it was practised in Whiteread's case in treason. But the reason given for this pactise, if it were law, (which yet without the prisoner's consent is unwarranted by antient usage); seems to hold as strongly in behalf of the prisoner as of the King. And yet I do not find any instance, where a jury once sworn was ever discharged, because the prisoner's evidence was not ready; on the contrary in Lord Russel's case, the Court refused to put off the trial only till the afternoon of the same day, pretending they could not do it without the consent of the Attorney General, although in that case the jury were not sworn, and the prisoner urged that he had witnesses, who could not be in town till night, in which case it was certainly in the discretion of the Court to [1866.] WINSOR V. The QUEEN. [1866.] WINSOR V. The QUEEN. put it off or not. It hath however been since holden (a) 7 How. St. Tr. 79. 120. |