The relator was indicted for manslaughter. He was put to his trial. He was exposed to the necessity of becoming a witness to relieve himself of that charge. The jury disagreed and were discharged without his procurement, consent or waiver. Thereafter he was indicted for the capital crime of murder, based on the same homicide. The court is about to hold that the relator may be tried on the indictment for murder. The learned writer of the prevailing opinion cites no authority to sustain the decision. All that the cases cited by him determine is that where a defendant is indicted' for manslaughter, and held upon that indictment, he may, notwithstanding the discharge of the jury upon their declaration of their inability to agree, be retried on the same indictment. So far as I have been able to discover, the procedure adopted in the case at bar is an innovation.
I should be inclined to dissent on principle; but in this State we have a statute which, where it does not violate a constitutional protection, absolutely regulates criminal procedure. (People v. Palmer, 109 N. Y. 413, 417; People ex rel. Stabile v. Warden, etc., 202 id. 148, 149.) Sections 428, 429 and 430 of the Code of Criminal Procedure provide when a jury is to be discharged before agreement, how the reasons therefor are to be recorded and what is to be done thereafter. Section 430 reads: “ In all cases where a jury are discharged, or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term.” The cause which may be tried again means the action submitted to the first jury — the action instituted by the indictment for manslaughter. The language of the section is clear and explicit and admits of no other meaning. This law is ignored in the opinion of the court. In my judgment the first indictment survives, and the second indictment is a nullity and, therefore, not a superseder. The writ of habeas corpus is the appropriate remedy. (People ex rel. Stabile v. Warden, etc., supra, 152.)
Doubtless the order setting aside the indictment for man*515slaughter may be vácated by the court which made it and the relator put upon his trial for the offense therein alleged; but as there is no warrant returned for holding the relator, he should be discharged.
The final order should be reversed.
Putnam, J., concurred.
Order affirmed, without costs.