The record of the Superior Court is now brought before us by writ ofcertiorari, and upon review this Court is of opinion, there is error. The prisoner is entitled to be discharged. By C. C. P., Sec. 397, it is enacted: "In case the term of a Court shall expire while a trial for felony, c., shall be in progress, and before judgment shall be given therein the Judge shall continue the term as long as in his opinion it shall be necessary for the purposes of the case." See State v. Adair, atthis term. By the cases, State v. Prince, 63 N.C. 529. State v. Alman64 N.C. 364, and State v. Baker, 65 N.C. 332, it is settled, that in a trial for a capital felony, for sufficient cause, the Judge may discharge the jury and hold the prisoner for another trial. In which case it is his duty to find the facts, and set them out on the record, so that his conclusion as to the matter of law arising from the facts, may be reviewed by this Court.
As the case was given to the jury on Tuesday of the second week of the Term, we are inclined to the opinion, that had his Honor remained at theCourt, until Saturday night ready to instruct the jury, and then discharged the jury, after Friday, the fact that the case had been with the jury for four days, and that from declarations of jurors, in the presence of the others and in open Court before him, he was satisfied the jury would not agree, and that it was useless and "not necessary for the purpose of the case" to continue the term longer, and had thereupon discharged the jury, there would have been no error.
But these facts are not found and could not have been found by him judicially; for it is set out in the record, that he left the Court and went to his residence in Franklin County on Tuesday night, "instructing the Clerk to inform him by telegraph of the agreement or failure to agree of the jury before Saturday night following." It is further set out, that on Saturday at 5 o'clock P. M., the Clerk informed his Honor by telegraph, that the jury could not agree, and his Honor *Page 313 instructed the Clerk by telegraph to discharge the jury and remand the prisoner; which the Clerk did.
It was the duty of the Judge to have been personally present in Court, and to find judicially the facts upon which his conclusion to discharge the jury was based.
Judicial power cannot be delegated. This is a fundamental principle of the law. It has been violated. The result is, the prisoner is entitled to be discharged. This Court acting as upon a writ of error, adjudges that the prisoner be discharged and go without day.
PER CURIAM. Judgment reversed.