Petitioner was brought to trial on charges of robbery, first degree. On the second day of the trial the case was submitted to the jury. At about 11:00 p.m. that night, after approximately 12% hours of deliberation, the jury, not having agreed, was discharged by the court and the defendant remanded for a new trial.
Thereafter, petitioner-respondent by writ of habeas corpus sought his discharge. The writ of habeas corpus was sustained in that the discharge of the jury by the court was improper, was done without the consent of counsel, and that the petitioner cannot be retried without subjecting him to double jeopardy. It is this judgment which sustains the writ that is the subject of this appeal.
At the time of the trial the conditions under which a jury could be discharged before agreement were set forth in subdivision 2 of section 428 of the Code of Criminal Procedure which reads as follows: “ When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict ”.
At the time of discharge by the court, the jury was not asked nor did they state that they Avere unable to agree.
The court did inquire if they had reached a verdict. The answer was no. The court then stated: “ It is now seven minutes after eleven. You have been deliberating for over twelve hours. You are excused at this time. Please report back to the central jury room at 10 o’clock tomorrow morning. The Court declares a mistrial.”
In the case of People ex rel. Stabile v. Warden of City Prison (202 N. Y. 138, 149-150) the court stated: “Prom 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 *37time before it has agreed, then the last clause of subdivision 2 of the section quoted is meaningless. * * *
“We repeat that our statute is plain. * * * 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.” To the same effect is Matter of Adamo v. Justices of Sup. Ct. (28 A D 2d 653).
Clearly, then, the discharge of the jury without the consent of the defendant, although well intentioned, was violative of the statute and in effect was an acquittal of the relator. Accordingly, the judgment should be affirmed.