In the cases of Ned v. The State, (7 Porter, 187,) and McCauley v. State, (26 Ala. 135,) it was said that the court may, in a case of necessi *414discharge a disagreeing jury, charged with a criminal cause; and that iu such case, the accused might be put upon Ills trial a second time. Neither of these cases attempts to state or define all the necessities which would justify the discharge of a jury without the prisoner’s consent.
In Battle’s case, (7 Ala. 259,) it was decided, that a court might discharge a jury, without the defendant’s consent, (the other business of the court being disposed of,) after allowing the jury a reasonable time to agree upon a verdict. In that case, the jury were discharged on the same day on which they retired to consider of their verdict; and this court held, that it would presume, (the contrary not appearing,) that a reasonable time had been allowed for the jury to consider of their verdict. This case is evidently based upon the principle, that the necessity, which authorizes a discharge of the jury, need not be physical; and that a case which th^ law recognizes as a moral necessity does exist, when the business of the court, other than the particular criminal case, has been disposed of, and the jury have so long considered of their verdict, without agreeing, as to indicate the absence of all probability that they would unite upon any conclusion; and in the determination of the question whether the jury have considered the case for a reasonable time, or until there is no probability that they will agree, something must be left to the judgment and discretion of the court which tries the case, which is cognizant of its nature, knows whether the questions are such as would probably give rise to serious and obstinate conflicts of opinion, and witnesses the manifestations which the jury give when they come into court.
The decisions, as to what constitutes a sufficient cause for the discharge of a jury in a criminal case, are in a most singular state of conflict and confusion. — See them collated in 2 Leading Criminal Cases, 358 to 374, and Wharton’s Am. Crira. Law, §§ 573-591.
It is obviously important, when a rule of practice in reference to such a question as that now before us has been laid down by this court, that it should be adhered *415to; otherwise, the circuit courts, in following the path marked out for them, might become the unwitting instruments of the discharge of the vilest criminals. A careful examination of the decisions upon the subject lias convinced us, that the doctrine of this court, as laid down in Battle’s ease, has much of authority and reason to support it. We are by no means convinced that it is wrong upon principle, or will operate injuriously to the citizen or the government; and we think we consult a sound judicial policy in abiding by it. We, therefore, decline to overrule the decision in Battle’s case, and must approve the rulings of the court below upon the trial of the issue made upon the plea of autrefois acquit; for this case is a stronger one for the justification of the discharge of the jury, than was Battle’s case.
We take occasion, however, to remark, that it is much the more prudent apd safe course, for the circuit judges to pfotraet the session of the court to the end of the term prescribed by law, where the duration of the term is fixed, unless some great and overruling necessity requires a different course, or unless the prisoner consents to the discharge of the jury ; for it is an extremely delicate and hazardous thing for the court to interfere with a prisoner’s -chances for life or liberty, by acting upon the apparent absence of any probability of an agreement by the jury.
The motion is refused.