The return to the writ of error necessarily brings up the indictment, and the pleas interposed by the defendant, the trial and judgment upon those pleas, together with the bill of exceptions. The objection on the part of the People to so much of the bill of exceptions as relates to the defendant’s special plea and the proceedings thereon, is therefore not well taken.
This special plea alleges, that on the first day of September, 1859, the defendant was put upon his trial upon the indict*532ment, and a jury was drawn, impanneled and sworn to try the issue between the People and the defendant, and that said jury, without the consent of the defendant., had been discharged and separated without rendering any verdict, and without disagreeing or other special cause, but by mere irregularity, and that the defendant had once been put in jeopardy upon the indictment, and could not be again tried. The reply to this plea, as amended, denied that the jury had been discharged, and alleged that they separated immediately after being impanneled, and before any evidence was given, at the reguest of the defendant.
If the facts alleged in the special plea are true, there can be no doubt, under the decisions in our own courts and elsewhere, that the defendant cannot be tried upon the indictment. The earlier cases upon the question whether the court had the power to withdraw a juror or to discharge a jury in a criminal case, were reviewed by Kent, Justice, in the case of The People v. Olcott (2 J. Cas., 301), and it was held that the power existed, but that it could only be exercised in cases where it was necessary for the proper administration of justice, and that this necessity must be determined by the court upon a consideration of all the circumstances attending the case. The same question was considered in the case of The People v. Goodwin (18 J. R., 187), and Spencer, Ch. J., in that case said: “ Upon full consideration, I am of the 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 necessityand 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 the case 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.” In The People v. Barrett (2 Caines' R., 308), Livingston, J., says: “ The power (of withdrawing a juror in criminal cases) should not be lightly used, but confined as much as may be to cases of very urgent necessity, where, by the act of Grod, or by some *533sudden and unforeseen accident, it is impossible to proceed without manifest injustice to the public or the defendant.” And in The United States v. Perez, it was held that “the law has invested courts of justice with the authority to discharge a jury from giving a verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” In The People v. Green (13 Wend. R., 55, 57), it was held that when it is admitted that the court has the power to discharge, and that the time when the power ought to be exercised rests in the discretion of the court, a case is presented in which, if the power has not been discreetly exercised, there can be no remedy by writ of error. (See also M. C. Newton's Case, 66 N. C. L. R., 716.) In the case now before us, the special plea excludes the existence of any necessity, and all grounds for the exercise of the discretion of the court. It alleges that the jury was “ discharged without disagreeing or other special cause, but by mere irregularity,” and that this was done without the consent of the defendant. In Mahala v. The State (10 Yerg. R., 582), the Supreme Court of Tennessee held that there was no power to discharge a jury in a criminal case without the consent of the defendant, except in cases of manifest necessity. When the jury are unwarrantably discharged, it is equivalent to an acquittal. The law, to warrant the discharge of the jury, must be one of uncontrollable emergency. (The State v. Waterhouse, Mart. & Yerg. R, 278.) The English cases are all cited in the case of Mary Catharine Newton (66 E. C. L. R., 716, supra). The arbitrary discharge of a jury in a criminal case, against the consent of a defendant, without any cause, and where no circumstances exist calling for the exercise of the discretion of the court (which is the case presented by the special plea of the defendant), is a bar to a subsequent trial of the defendant upon the same indictment. (Commonwealth v. Cook, 6 Searg. & Rawle, 577; State v. Ephraim, 2 Dev. & Bat., 162; 2 Gr. & Wat. on New Trials, 105, 106, and folios and notes) In the case of The United States v. Pedro Gibert (2 Sumn. R., 60), Mr. Justice Story approves of *534the doctrine of the Supreme Court of Pennsylvania and ¡North Carolina, which hold that the provision of the Constitution of the United States, which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb, includes cases where a party is once put upon his trial before the jury, and they are discharged from giving a verdict without extreme necessity, and he adds: “ This, too, is the clear, determinate and well settled doctrine of the common law, acting upon the same principle as a fundamental rule of criminal jurisprudence.” The clause of the Constitution referred to, has been held to extend to all felonies. (People v. Godwin, supra, 18 J. R., 201.)
The issue joined upon the defendant’s plea could only be tried by a jury. The consent of the defendant could not confer jurisdiction upon the court to try the issue without a jury. This was held in the case of Cancemi v. The People (18 N. Y. R., 129, 135, 137), upon the ground that the State has an interest in the preservation of the liberty of its citizens, and will not allow it to be taken away except by due process of law, and that the trial of an issue joined upon an indictment, must be by the tribunal and in the mode prescribed by the Constitution and laws, without essential change. The defendant, therefore, has not been legally tried upon his special plea, and the judgment against him should be reversed, and a new trial ordered before the Sessions of St. Lawrence county, to which court the case is remitted.
Ordered accordingly.