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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 142 In England, during the reign of Edward III, vigorous means were resorted to for the purpose of compelling unanimity among jurymen. Jurors who dissented from the rest were committed to prison, and justices resorted to carrying jurors about with them in carts until they agreed. (Crabb's English Law, 300.) It became the common-law rule that persons serving as jurymen must decide upon a verdict in every case presented to them, and coercion in different forms was permitted and generally exercised. Such rule not only is no longer accepted and enforced, but the rule itself is now only a matter of interest to persons studying the history and development of the law. The old rule is stated by legal writers (Lord Coke, 1 Inst. 227b; 3 Inst. 110) and the records of cases establishing and asserting it have been frequently collated and discussed in more recent opinions. (People v. Olcott, 2 Johnson's Cases, 301; People v. Sheldon, 156 N.Y. 268.) There is no reason that would justify the repetition of such quotations in *Page 145 this opinion, and I refer to the old rule simply as a statement preliminary to quoting the statute that now asserts and controls the discretion resting in a trial judge or justice regarding the discharge of a jury, called and sworn in a criminal case, prior to rendering a verdict. Coercion of jurors has never found favor in this state.
By the Revised Statutes of 1829 it was provided: "Attaints upon untrue verdicts are abolished; and for any verdict rendered by him, no juror shall be questioned, or be subject to any action or proceeding, civil or criminal, except to indictment for corrupt conduct in rendering such verdict, in the cases prescribed by law." (2 R.S. part 3, ch. 7, title 4, art. 4, sec. 69.)
Early in the last century Mr. Justice KENT in People v.Olcott (supra), referring to the common-law rule and reviewing at length many of the cases that had been decided prior to that time, said: "The doctrine of compelling a jury to unanimity, by the pains of hunger and fatigue, so that the verdict, in fact, be founded not on temperate discussion, and clear conviction, but on strength of body, is a monstrous doctrine, that does not, as St. Germain evidently hints, stand with conscience, but is altogether repugnant to a sense of humanity and justice. A verdict of acquittal or conviction obtained under such circumstances, can never receive the sanction of public opinion. And the practice of former times of sending the jury in carts from one assize to another, is properly controlled by the improved manners and sentiments of the present day." (p. 309.)
Growing out of the common-law rule that we have stated, it was, by Lord COKE, asserted that a jury sworn and charged in a criminal case could not be discharged until they had rendered a verdict.
In the case of People v. Olcott (supra) Justice KENT reviews the authorities to sustain the claim that a court has no power to discharge a jury in a criminal case until they have agreed upon a verdict, and concludes that the *Page 146 power to discharge a jury in certain cases before they render a verdict exists. In the Olcott case the defendants were indicted for a misdemeanor and Justice KENT left a possible doubt as to the rule stated by him being applicable to capital cases by saying: "If the question in capital cases be doubtful, there is nothing to render it so in cases of misdemeanor." (p. 307.) Long before the adoption of our Code of Criminal Procedure in 1881 it became the settled rule in this-state that the discharge of a jury in all cases rests in the sound discretion of the court. (People v. Denton, 2 Johnson's Cases, 275; People v.Olcott, supra; People v. Goodwin, 18 Johnson, 187; People v. Green, 13 Wendell, 55; Grant v. People, 4 Parker's Criminal Reports, 527.)
The right to discharge a jury in all cases was asserted by SPENCER, J., in People v. Goodwin (supra), and he, at the same time, formulated a rule to be followed in the exercise of such discretion. We quote from the opinion in that case: "Upon full consideration, I am of opinion, that although the power of discharging a jury is a delicate, and highly important trust, yet, that it does exist in cases of extreme and absolute necessity; and that it may be exercised without operating as an acquittal of the defendant; that it extends as well to felonies as misdemeanors; and that it exists, and may discreetly be exercised in cases where the jury, from the length of time they have been considering a cause, and their inability to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion." (p. 205.)
Under the rule established the safeguard of the public and of persons charged with crime against an improper discharge of a jury rested in the good judgment and integrity of the judges. Prior to the adoption of the Code of Criminal Procedure it is asserted that in one or more cases in this state a jury had been discharged without the exercise of that good judgment which is usually *Page 147 manifested in all matters resting in the discretion of the courts. It is also asserted that the criticisms arising therefrom resulted in the insertion in the Code of Criminal Procedure of section 428, which asserts, defines and limits the discretion resting in the courts relating to the discharge of a jury before it has arrived at a verdict. Said section 428 reads as follows: "When jury to be discharged before agreement. — 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:
"1. Upon the occurrence of some injury or casualty affecting the defendant, the jury or some one of them, or the court, rendering it inexpedient to keep them longer together; or,
"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; or,
"3. When, with the leave of the court, the public prosecutor and the counsel for the defendant consent to such discharge."
In the case now under consideration it is not claimed that the judge presiding at the Court of General Sessions had the right to discharge the jury by reason of the first subdivision of said section.
There was no opportunity given the defendant or his counsel to consider the contemplated action of the trial judge when he called the jury before him. He did not indicate in any way in advance what action he was going to take. The discharge of the jury was precipitate and arbitrary and it would appear to have been a surprise not only to the jury but to the counsel engaged in the trial of the case. The right to discharge the jury does not come within the third subdivision of said section.
The discharge of the jury necessarily rests upon the statutory authority contained in the second subdivision of said section. The right was, therefore, dependent upon the jury having declared themselves unable to *Page 148 agree upon a verdict. The jury did not declare themselves unable to agree upon a verdict either in terms or by any fair inference. They were in the midst of their deliberations upon the case when, without a suggestion from them, and without the defendant or his counsel being informed of the purpose thereof, the judge presiding at the trial arbitrarily directed them to come before him. Upon their appearance before him they were not asked whether they were able to agree upon a verdict, but as to whether they had in fact agreed, in language as follows: "Mr. Foreman, have you agreed upon a verdict?" If the jury had responded through their foreman by a simple negative, it could not by any fair construction be said to have been a declaration of inability to agree. The answer in this case, however, includes much more than a simple negative. When the foreman said in answer to the question by the trial judge, "Not as yet," he clearly indicated that the jurymen had not completed their discussion and deliberation in an effort to reach a verdict and that they were in the midst of such discussion and deliberation and that they required further time before they could determine whether they were able to agree upon a verdict. The reply included by implication a hope and perhaps even an expectation of an agreement. It is suggested by the district attorney that the simple fact that the jury had not as yet agreed, carried with it necessarily the fact that they were at that time unable to agree. If the jurymen had been asked five minutes after the submission of the case to them and before they had had any discussion or deliberation upon the verdict that should be rendered in the case, whether they had agreed upon a verdict, the answer would necessarily have been substantially the same as that given to the question asked by the court. Such an answer would be appropriate and true in every case from the moment it was submitted to a jury until a verdict was reached. It would have been true if the last ballot taken before *Page 149 they were directed to come before the court had resulted in eleven votes for acquittal and one in some doubt leaning toward an acquittal. In this case, at the time the jury was discharged, ten jurors had voted for an acquittal, while the other two then favored a conviction for a lesser offense than that for which the relator was charged in the indictment.
From the plain language of the statute itself it appears that it was not the intention of the legislature to permit the court to exercise discretion in discharging a jury at any point of time prior to a declaration by them of their inability to agree. If the statute means that the court has the right in its discretion to discharge a jury at any time before it has agreed, then the last clause of subdivision 2 of the section quoted is meaningless. If it had been the intention of the legislature to leave it for the court to say that the jury were unable to agree without a statement from them relating thereto, it would have passed a statute similar to the one now existing in the state of California. The Penal Code of California provides: "Section 1139: If, after the retirement of the jury, one of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation the jury may be discharged. Section 1140: Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties entered upon the minutes, or unless, at the expiration of such time as the Court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree."
Under such a statute a reasonable discretion at all times rests in the court to determine whether "it satisfactorily appears that there is no reasonable probability that the jury can agree." We repeat that our statute is plain. Any other words attempting to construe it lead *Page 150 to confusion and not to clearness. It was intended to take away the unqualified discretion that had theretofore existed in the courts in regard to discharging a jury and make the discretion of the courts dependent upon a prior declaration by the jury of their ability or inability to agree. A declaration even by a minority of the jurors that in their opinion a further deliberation by them would lead to an agreement would under our statute require the court to send the jury back for such further deliberation. The jury in this case were improperly discharged without determining the relator's guilt or innocence.
It is a fundamental principle of common law as well as a right guaranteed by Constitution that a person shall not for the same offense be twice put in jeopardy of life or limb. (People v.Goodwin, supra.)
It is provided by the fifth amendment to the Constitution of the United States that a person shall not "Be subject for the same offense to be twice put in jeopardy of life or limb."
It is provided in our State Constitution (Article 1, section 6): "No person shall be subject to be twice put in jeopardy for the same offense."
Where a person charged with crime has been once duly acquitted or convicted before a court of competent jurisdiction, he can plead such acquittal or conviction in bar to any further prosecution for such crime.
Under our Code of Criminal Procedure a judgment of conviction or acquittal of the crime charged is necessary to constitute a good plea. (Code of Criminal Procedure, section 332.)
If a person accused of crime is placed upon trial therefor upon an indictment duly found and sufficient in form and he pleads thereto and proceeds with the trial before a jury duly sworn to try the issues so joined, he is placed in jeopardy within the constitutional provisions. There are many things that may occur during a trial which will for reasons stated by the courts permit of the *Page 151 discharge of a jury before rendering a verdict with or without the consent of the defendant and leave the defendant subject to a trial before a new jury as though the first jury had never been impaneled and sworn.
If the jury is discharged without the defendant's consent merely because the public prosecutor is not prepared with his evidence, the defendant is entitled to his discharge because he has once been put in jeopardy within the constitutional provisions. (People v. Barrett, 2 Caine's Rep. 304; Grant v. People, 4 Park. Crim. Rep. 527; Klock v. People, 2 Park. Crim. Rep. 676.)
Where a jury is arbitrarily discharged in a criminal case without the consent of the defendant, and no circumstances exist calling for or permitting the exercise of a discretion by the court, the defendant has by reason of the trial that thus comes to a sudden end been placed in jeopardy within the constitutional provision, and such discharge is a reason within the Constitution why the defendant should not be again brought to trial upon the same indictment. (People v. Barrett, supra; Grant v. People,supra; King v. People, 5 Hun, 297; People v. Cage, 48 Cal. 323;State v. Allen, 59 Kan. 758; Wright v. State,5 Ind. 290; People v. Jones, 48 Mich. 554; Dobbins v. State,14 Ohio St. 493; Commonwealth v. Fitzpatrick, 121 Pa. St. 109; 12 Cyc. 270, and cases cited; 17 Am. Eng. Ency. of Law, 1261, and cases cited.)
There remains but one other question for consideration and that is whether the relator's right to a discharge can be determined in this proceeding. Although the discharge of the jury was not in form an acquittal of the defendant, it was in effect such an acquittal. It was not, however, a judgment of acquittal within the express provisions of section 332 of the Code of Criminal Procedure restricting and enumerating the pleas that may be interposed to an indictment by a defendant. A former conviction or acquittal which may be pleaded in bar is a conviction or acquittal on the merits. (People v. Smith, *Page 152 172 N.Y. 210, 227; People v. Goodwin, supra.) It is not important to consider the relator's chances of being discharged if he should move in the Court of General Sessions for an order for his discharge upon the ground that he has been once placed in jeopardy.
The relator's claim to a discharge was substantially decided against him when he was remanded to the custody of the defendant. There is no appeal from the direction of the court given at the time that the defendant was remanded, and there would be no appeal from an order of the Court of General Sessions denying a further application for a discharge. The only appeal allowed to a defendant in a criminal case is from a judgment of conviction after indictment. (Code Criminal Procedure, section 517.) He cannot move in arrest of judgment, for there is no prospective judgment to arrest. Assuming that he could assert his claim by a subsequent plea to the indictment or by a motion in arrest of judgment in case of a conviction on a second trial, it would be necessary for him to remain in custody until the case is again called for trial by the representative of the People and another trial is had. If there is no authority to again place the defendant upon trial upon the indictment, there is no right to restrain him of his liberty. We hold as a matter of law that the relator is in effect acquitted of the charge against him and should not be again placed upon trial upon the indictment.
A person imprisoned or restrained in his liberty within the state for any cause is entitled, except in one of the cases specified in section 2016 of the Code of Civil Procedure to a writ of habeas corpus for the purpose of inquiring into the cause of the imprisonment or restraint. (Code of Civil Procedure, section 2015.) If it appears that the prisoner is unlawfully imprisoned or restrained in his liberty the court or judge must make a final order discharging him forthwith. (Code Civil Procedure, section 2043.) *Page 153
This court held in People ex rel. Collins v. McLaughlin (194 N.Y. 556) that "Except in rare cases where the facts before the court cannot be materially changed, qualified or explained the determination of important issues ought not to be made in a habeas corpus proceeding." (p. 557.) In that case the court referred to and quoted from the United States Supreme Court, with approval, as follows: "The Supreme Court of the United States has recently announced its adherence to this doctrine." In Riggins v. United States (199 U.S. 547, 548) Mr. Chief Justice FULLER states: "Ordinarily the writ will not be granted when there is a remedy by writ of error or appeal, yet in rare and exceptional cases it may be issued, although such remedy exists."
In this case the right to discharge the jury does not rest upon a question of fact. The facts are conceded and the authority of the presiding judge at the trial depended solely upon a question of law. He had no discretion to exercise because the jury had not declared their inability to agree. The defendant has been once placed in jeopardy, and is entitled by Constitution as by common law to his liberty. Although entitled to his liberty as in case of a verdict of acquittal, he is in custody with no right of appeal from any mandate by which he is restrained. The relator's constitutional rights cannot be adequately preserved other than by the writ of habeas corpus. This is one of the cases where the facts before the court cannot be materially changed, and where the writ should be sustained. (Ex parte Neilson, 131 U.S. 176;Ex parte Glenn, 111 Fed. Rep. 257; Ex parte Davis, 48 Tex.Crim. 644; People v. Olcott, supra; People ex rel.Perkins v. Moss, 187 N.Y. 410; People ex rel. Tweed v.Liscomb, 60 N.Y. 559.)
This case is distinguishable from People ex rel. Scharff v.Frost (198 N.Y. 110.) In that case the relator was held by virtue of a judgment. The court had jurisdiction of the relator and of the crime of which he was *Page 154 charged and the reason why the relator therein claimed that he was entitled to a discharge rested upon the determination of a question of fact in connection with the construction of a statute. If the relator therein had availed himself of a motion in arrest of judgment he would have had an adequate opportunity to review the action of the trial court in granting the judgment against him.
As we have already shown in this case no adequate remedy has existed or now exists for the protection of the relator.
The order should be affirmed.