delivered the opinion of the court.
In. September, 1883, Whitten was tried in Second District of Panola County for murder. The jury retired to consider of their verdict at eight-and-a-half or nine o’clock at night on the last day of the term. About twelve o’clock the court sent for the jury, and after polling them ascertained that they could not agree and were not likely to do so. Thereupon it discharged them, the defendant neither consenting nor objecting to such action, so far as the record shows, and court was adjourned sine die at twelve o’clock p. M. Being arraigned again for the same offense at the next term of the court, defendant pleaded the above facts and claimed to be forever acquitted and discharged, because the record showed that he had been once in jeopardy, and the jury having been discharged without his consent he could not be again tried for the same offense. The case depends upon the question whether the court had a legal right to discharge the jury. Whatever doubt may exist in other States, it is well settled here that submission to a lawfully impaneled jury and a subsequent willful or unlawful dismissal of that jury constitutes former jeopardy and entitles the party to a final discharge. It is equally well settled that this effect will not follow when the discharge of the jury is compelled by a physical or legal necessity, as by the death or sickness of a juror, by the failure of the jury to agree after full and sufficient deliberation, or by the legal termination of the term. Some such necessity, however, must compel the discharge, in order to make it permissible; and up to the adoption of the Code of 1880 the court could order a discharge upon the ground that the time for closing the term had by law arrived. Josephine’s Case, 39 Miss. 613; Teat’s Case, 53 Miss. 439.
Such was the law until the adoption of the Code of 1880. Section 2292 of that code isas follows : “ When the trial or hearing *723of any case, civil or criminal, lias been commenced and is in progress in any court, and the time for the expiration of the term as prescribed by law shall arrive, the court may proceed with such trial or hearing and-bring it to a conclusion in the same manner and with the same effect as if the stated term had not expired.”
By this section there can be no ending of a term when a trial has been entered upon and is not completed, or at least there can never be any necessity for such ending, because the court, being empowered to continue the term, may do so at its own pleasure.
But the power to dismiss a jury in prosecutions for a felony can never depend on pleasure. Such power is wholly dependent on necessity either physical or legal. Where there is no necessity there is no power. Such unquestionably are our adjudications. It is a contradiction in terms, therefore, to say that the power of continuing the term is optional with the judge. The trial being begun and the jeopardy encountered, any dismissal of the jury is arbitrary which is not compelled by necessity. . If the court may continue at the pleasure of the judge, it is idle to say that necessity compels the discharge of the jury pending the trial on the ground only that the law speaks of a court being held elsewhere.
Court is never obliged to -meet elsewhere so long as a trial is progressing where it then is.
Whenever the court may prolong a term it must do so, since the prisoner by his silence consents to nothing.
Such are the decisions in the only cases which we find where the direct question has arisen under statutes nearly similar to our own. Wright v. State, 5 Porter (Ind.) 290 ; State v. McGimpsey, 60 N. C. 337.
We must therefore find'some other necessity for the discharge than that afforded by the apparent conclusion of the term. None is suggested save the fact that the jury had been out three and a half hours and reported that they could not agree. Undoubtedly the inability of a jury to agree after sufficient deliberation warrants a discharge, but we have found no case where, upon a charge of felony, a deliberation of this length, of time was sufficient to authorize a dismissal. The time required varies, and is, of course, largely in the *724discretion of the trial judge, but we do not believe that in this case, where the trial was for murder and the testimony voluminous and conflicting, three and a half hours were sufficient. We have found no case in which such length of time was deemed sufficient, and it is evident that it would not have been so treated here had not the court been as was supposed about to adjourn. In brief, the principle is that some physical or legal necessity must exist for discharging the jury, and there was in this case no such necessity.
The fact alluded to by counsel for thé State, that the statute makes no difference between civil and criminal cases, is not important, because in civil cases, where the principle of former jeopardy does not exist, the case is never at an end until there has been final verdict and judgment. Neither can a decision of the case be avoided upon the ground that no point was made on it in the court below under § 1433 of Code of 1880, discussed in Phillips’ Case, 57 Miss. 357; Flemming’s Case, 60 Miss. 910, and in other cases.
Those cases have bearing only where the attempt is to obtain a reversal here upon some ruling, omission, or defect adverse to the prisoner in the lower court. It could never have been intended that a man should have excepted in the court below to something obviously for his own benefit. He did in fact object and except before he was arraigned and placed on trial for the same offense at the next term, which was as soon -as he was. called upon to do so.
The minute the jury was discharged the prisoner was discharged also, and it cannot be that a prisoner must except in the lower court to his own discharge. He simply receives in silence the benefit which the court voluntarily bestows upon him, as shown by the record.
The law was substantially the same when French’s Case, 53 Miss. 363, occurred, and yet there the prisoner was discharged. So he must be here.