I vote for the reversal of the order appealed from. Though originally the common law was different, it became the settled law of this state, prior to the enactment of the Code of Criminal Procedure, that the time at which a jury, which after consideration of a case had been unable to agree upon a verdict, was to be discharged rested solely in the discretion of the trial judge. This was so held by the old Supreme Court even where the jury had the case under advisement for a period of only thirty minutes. (People v. Green, 13 Wend. 55.) Such is also the conceded law in the United States courts. The learned counsel for respondent cites some declarations in Grant v. People (4 Parker's Crim. Rep. 527), but there is nothing in that case in conflict with the Green case. On the contrary, the Green case is cited with approval. But the plea of the defendant was sustained because it alleged that the discharge of the jury was arbitrary "where no circumstances exist calling for the exercise of the discretion of the court," and the validity of the plea, as a plea, was to be determined by its face and not by the proofs offered to sustain it. The question is, therefore, whether section 428 of the Code of Criminal Procedure, which provides that "After the jury have retired to consider of their verdict, they can be discharged before they shall have agreed thereon only *Page 155 in the following cases. * * * 2. When after the lapse of such time as shall seem reasonable to the court, they shall declare themselves unable to agree upon a verdict," has altered the common-law rule. No such intent should be ascribed to the legislature unless the language of the section is express to that effect. The language of the Code is, "they shall declare themselves unable to agree upon a verdict." The jury was asked whether it had agreed upon a verdict, and the foreman responded: "Not as yet." This was a clear declaration that at the time the response was made the jury was unable to agree upon a verdict. What the section calls for is not any declaration from the jurors as to their belief, expectation or hopes that in future they may be able to agree, but for a present fact and existing condition. Let us see where the doctrine which has prevailed below will lead. Suppose that, though the jury is not able to agree, some of the jurors think they may be able, after future deliberation, to agree, while others entertain a contrary view. What action can the court take? Must the jury be unanimous in their belief as to inability to agree and may one dissenter keep the jury out indefinitely at his election, or shall the court poll the jury, and is the question to be decided by a majority, contrary to the usual rule which requires the action of a jury to be unanimous? It is true that case is not before us, but a great part of the difficulties in which at times courts find themselves involved arises from failure to look forward and see what will be the result of the rules of law they declare.
VANN, WERNER and WILLARD BARTLETT, JJ., concur with CHASE, J.; HISCOCK, J., concurs with CULLEN, Ch. J.; HAIGHT, J., absent.
Order affirmed. *Page 156