There are some stages of a trial in which the
right to enter a nolle prosequi clearly ceases ; as after a verdict of manslaughter on an indictment for murder ; in others, a question might be made ; as after the evidence is closed, or after it has been summed up to the jury. In some cases, it should seem, the cause must be taken from the jury, of necessity ; as if the jury cannot agree, or if one of them is taken ill, so that he cannot proceed in the trial. Suppose the principal witness suddenly absconds, or is seized with a fit, after the jury are *400efnpannelled, and so is unable to testify ; it seems proper, that in such cases the Court should have power at their discretion, to stop the trial. Where the indictment is defective, the prisoner is not put in jeopardy, and a verdict would be nugatory. We do not however now decide what the Court would do in any supposed case of necessity, but confine ourselves to this particular case, and to this stage of it. The prisoner is put upon his trial on an indictment for arson. A material part of the facts in issue, is whether the barn was the building of Gay and Newell, as alleged in the indictment, and the evidence produced by the government will not warrant the jury in find ing that it was their building. It is a case where there is no necessity, no unforeseen cause of delay, no accident, no mistake, no extraordinary exigence. It is an ordinary case of a good indictment, in point of form, but a failure in the proof. And we think, therefore, that the prisoner is entitled to a verdict of acquittal.
The jury were instructed accordingly, and acquitted the prisoner.
After this acquittal Wade was again indicted for arson in setting fire to the same barn. The indictment contained twelve counts. The first four respectively charged the prisoner with setting fire directly to the dwellinghouses of James Bride, George Dixon, Mason Richards and Ebenezer Fisher. The second four charged him with setting fire to “ a certain building there situate, called a barn, which said building was not then and there owned or occupied by the said Wade,” and then alleged respectively that by the burning of the barn the same dwellinghouses were burnt. The third four charged him with setting fire .to “ a certain building, called a barn, of Ebenezer Newell ” and about ninety other individuals named, (these other individuals being in fact the members of the Citizens Coach Company, but it was not so stated in the indictment,) and then alleged respectively that by the burning of the barn the same dwellinghouses were burnt.
■ To this indictment the prisoner pleaded in bar his acquittal on the former indictment, averring in his plea, “ that the said burning said dwellinghouse of James Bride and of a building called a barn, of Ebenezer Newhall and Timothy Gay in *401the same indictment specified and set forth, and supposed to be done and committed by him the said John Wade, is the same identical burning as that named in all or any of the counts of the indictment to which he is now pleading, and supposed and alleged to have been done and committed by him the said John Wade, and not other and different.” The Attorney General craved oyer of the record of the former acquittal, and demurred to the plea.
Cushing, for the prisoner, argued that the plea alleges the identity of the offences set forth in the two indictments, and that this allegation is admitted by the demurrer ; that the offences are the same in law, both indictments being founded upon St. 1804, c. 131, § 1, and are the same in fact, the burning of the several dwellinghouses mentioned having been caused by the burning of the same barn ; that the case of Commonwealth v. Roby, 12 Pick. 496, would not sustain this indictment, because there the record set forth upon oyer showed a different offence, both in law and in fact, and so controlled the admission in the demurrer, of the identity of the offences ; that the same evidence would support this and the former indictment; that the prisoner had once been put in jeopardy, for the former indictment was good, but the prosecution failed for want of evidence, and he was not bound to answer to a new indictment merely varying the 'form of describing the offence. 2 East’s P. C. 520; Vandercomb’s case, 2 Leach, (3d edit.) 816.
The Attorney General relied on Commonwealth v. Roby, 12 Pick. 496.
The Court, after deliberation, said that the averment of property in the barn being material, and the fact being alleged differently in the two indictments, they were not for the same offence, in form or substance ; that the same evidence which would support the averment, that the barn was the property of Newell and the members of the Citizens’ Coach Company, would not support the averment that it was the barn of New-ell and Gay; that as the plea professed to answer the whole indictment, and was not a good bar to all the counts, it could not on demurrer be a good bar to any of them ; that as to the counts in the new indictment alleging the barn not to be the *402property of the prisoner, this was not inconsistent with the averment in the former indictment, that it was the barn of Newell and Gay, and if the plea had been pleaded to those counts alone, and had averred that they were for the same offence, the demurrer might have been an admission of this averment, and the plea have been a good bar ; that the plea did not so aver, but only averred that the burning was the same, which might well be, and yet the offence not bo the same.
The plea was therefore overruled, and the prisoner, being required to answer over, pleaded not guilty, and was put upon his trial.
In empannelling the jury, one of the jurors was inquired of upon oath, (pursuant to St. 1807, c. 140, § 9,) “ whether he had formed or given any opinion, or was sensible of any particular interest or prejudice in the cause,” and upon his answers he appeared to stand indifferent. The Attorney General then stated that the juror might find himself implicated by the testimony to be produced on the trial, and it could not be supposed that he would weigh such testimony with impartiality.
The Court observed, that it was the general intent of the statute to have a perfectly fair jury ; that in their opinion, the inquiries allowed by the statute to be made of a juror on his voir dire, were put by way of example ; that as a general rule, after putting a juror upon his voir dire, a want of impartiality is not to be proved by witnesses, but that where a distinct cause of challenge exists, which could not be known to the juror, it forms an exception to this rule.
The Court therefore permitted witnesses to be examined, and being of opinion that the evidence was such as would tend to bias the juror’s mind, they said that in tenderness to the juror, as well as in justice to the parties, he ought not ta be put upon the panel.