discharge of a jury

DISCHARGE OF A JURY, practice. The dismissal of a jury who had been charged 
with the trial of a cause. 
     2. Questions frequently arise, whether if the court discharge a jury 
before they render a verdict, in a criminal case, the prisoner can again be 
tried. In cases affecting life or members, the general rule is that when a 
jury have been sworn and charged, they cannot be discharged by the court, or 
any other, but ought to give a verdict. But to this rule there are many 
exceptions; for example, when the jury are discharged at the request or with 
the consent of the prisoner and for his benefit, when ill practices have 
been used; when the prisoner becomes insane, or becomes suddenly ill, so 
that he cannot defend himself, or instruct others in his defence; when a 
juror or witness is taken suddenly ill; when a juror has absented himself, 
or, on account of his intoxication, is incapable to perform his duties as a 
juror. These and many similar cases, which may be readily imagined, render 
the discharge of the jury a matter of necessity, and; under such very 
extraordinary and striking circumstances, it is impossible to proceed with 
the trial, with justice to the prisoner or to the state. 
     3. The exception to the rule, then, is grounded on necessity, and not 
merely because the jury cannot agree. 6 Serg. & Rawle, 577; 3 Rawle's Rep. 
501. In all these cases the court must exercise a just discretion in 
deciding what is and what is not a case of necessity. This is the law as to 
the exceptions in Pennsylvania. In other states, and some of the courts of 
the United States, it has been ruled that the authority of the court to 
discharge the jury rests in the sound discretion of the court. 4 Wash. C. C. 
R. 409; 18 Johns. 187; 2 Johns. Cas. 301; 2 Gall. 364; 9 Mass. 494; 1 Johns. 
Rep. 66; 2 Johns. Cas. 275 2 Gallis. 364; 13 Wend. 55; Mart. & Yerg. 278; 3 
Rawle, 498; 2 Dev. & Bat. 162; 6 S. & R. 577; 2 Misso. 166; 9 Leigh, 613; 10 
Yerg. 535; 3 Humph. 70. Vide 4 Taunt. 309. 
     4. A distinction has been made between capital cases and other criminal 
cases, not capital. In cases of misdemeanors and in civil cases, the right 
to discharge rests in the sound discretion of the court, which is to be 
exercised with great caution. 9 Mass. 494; 3 Dev. & Batt. 115. In 
Pennsylvania this point seems not to be settled. 6 Serg. & Rawle, 599. The 
reader is referred to the word Jeopardy, and Story on the Const. Sec. 1781; 
9 Wheat. R. 579;  Rawle on the Const. 132, 133; 1 Chit. Cr. Law, 629; 1 Dev. 
491; 4 Ala. R. 173; 2 McLean, 114. See Afforce.