[1866.] WINSOR V. The QUEEN. valent to a verdict of acquittal. There never was a plea to that effect until the case of Conway and Lynch v. The Queen (a). I am not aware of any other pleas in bar to an indictment for felony than the four,-autrefois acquit, autrefois convict, autrefois attaint, and pardon. All others are to the jurisdiction of the Court; and, therefore, if the discharge of the jury cannot be taken advantage of under either of those four pleas there is no other mode of pleading it; and if not, it does not amount to a determination of the proceedings. I therefore adopt the opinion of the dissentient Judge in that case, and hold that a discretionary power of discharging the jury exists. It is suggested that it is dangerous to allow this discretionary power-that it is arbitrary and may be abused. But the Judge exercises it under the control of public opinion, and the responsibility he owes to Parliament, and I think that there is no danger that he will exercise it corruptly or negligently. Even if there were, that would be no reason for our disallowing it, when we are satisfied it exists in law. It is true that the exercise of this power may be to the disadvantage of the prisoner in some cases. In the present instance, on the second trial, the prisoner was accidentally placed in a different position from that in which she stood at the first, when the jury were charged with both the prisoners together. On the second trial the prisoner was tried by herself, and her accomplice was called as a witness for the Crown, while she remained in a position of peril and liable to be tried. It is desirable to avoid exposing an ignorant witness to the temptation of giving false evidence, in order to secure her (a) 7 Ir. Law Rep. 149. own safety at the expense of the prisoner, against whom she is called; and therefore, though I am of opinion that in point of law the evidence of the accomplice was clearly admissible, I concur with the Lord Chief Justice as to the danger of that course of proceeding. LUSH J. After the elaborate judgments which have been delivered, and in which I entirely concur, I should, in an ordinary case, have contented myself with merely expressing my concurrence, but in a case of this importance I think that each member of the Court should state his reasons for the conclusion at which he has arrived. Two grounds of error have been principally relied on. That on which the greatest stress has been laid, divested of legal verbiage, amounts to this, that the trial on which the prisoner was found guilty, was null and void : that the jury had no jurisdiction to try, and consequently the Judge had no jurisdiction to pass sentence, because the prisoner had previously been given in charge to another jury on the same indictment, and that jury had been discharged without giving a verdict under the circumstances stated in the record; and it was said that to put the prisoner again upon her trial was a violation of the well known maxim of law that a person shall not be twice vexed for one and the same cause. That maxim is applicable alike to civil and criminal proceedings; and, as was observed by the Lord Chief Justice in the course of the argument, the law has furnished its own exposition of its meaning by the pleas which it has provided to give effect to it, viz., in civil cases the plea of judgment recovered and its con [1866.] WINSOR V. The QUEEN. [1866.] WINSOR V. The QUEEN. verse; and in criminal cases the plea of autrefois acquit and its converse. The maxim assumes that the proceeding has gone on to its termination by verdict and judgment, in which case the former proceeding shall be a bar to the second trial. It is now sought to engraft on this maxim another meaning, viz., that when the first proceeding has been abortive and has not been brought to its legitimate termination, it shall be a bar to a second trial. There is no authority or dictum that I am aware of for that proposition; nor is it consistent with reason or principle. Even Lord Coke, who says, Co. Litt. 227 b, that "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," does not intimate that if the jury were wrongfully discharged, it would be equivalent to an acquittal or a bar to further proceedings. Not until the plea pleaded in Conway and Lynch v. The Queen (a), was that proposition ever put forward. With great respect for the majority of the Judges of the Court of Queen's Bench in Ireland, I must say that I cannot agree with them, but I adhere to the preferable judgment of Crampton J., and hold that where the first trial is abortive by any means whatever, it is not a legal bar to a second trial for the same offence. The decision of this point is sufficient to dispose of the case; but as the question, whether the presiding Judge has power to discharge a jury under the circumstances stated, has been fully discussed, and the other members of the Court have expressed their opinions on (a) 7 Ir. Law Rep. 149. it, I desire also to give mine. Even if there were no authority for the position contended for, I should have [1866.] WINSOR V. no doubt that such a power is necessarily vested in him; The QUEEN. because while the law requires unanimity in the verdict of a jury, it is obvious that the time may come when they must be discharged. I am glad that the passage which has found its way into our text books, and which I have often as a lawyer read with humiliation, that if the jury did not agree the Judge might take them with him to the confines of the adjoining county, has been traced up to its source, and proved to rest on no foundation of judicial decision or actual practice. But even that dictum assumes that at some time or other they may be discharged. Then as a time may come when a jury, who cannot agree, must be discharged, who is to determine when the proper time has arrived, but the presiding Judge? That must be in his discretion. If so, the exercise of that discretion cannot be reviewed. It is the province of a Court of error to correct that which is against law; and it cannot be against law to do that which the Judge in the exercise of his discretion has a right by law to do. But if it were competent for us to review the exercise of the Judge's discretion, I desire to express my opinion that in this case he was right. After he had waited so long as to satisfy himself that the jury had given their best attention to the case, and exhausted their powers of persuasion, and after they had stated that they were not likely to agree, it would have amounted in my opinion to an unjustifiable coercion to have kept them longer in confinement, subject to B. & S. VOL. VI. [1866.] WINSOR V. The QUEEN. privations dangerous to their health, and he could not have done otherwise than discharge them. As to the other ground of error which impeaches the propriety of the second trial, it is enough to say that in my opinion the fellow prisoner and accomplice was an admissible witness: and that if she even were not, her inadmissibility would not be ground of error. Judgment affirmed. An order similar to that in Mansell v. The Queen, in error (a), except that it did not fix the day of execution, was then made. Afterwards the Attorney General granted his fiat for a writ of error to the Exchequer Chamber. (a) 8 E. & B. 54. 84-5. |