Among cases of necessity which have been held sufficient to warrant the discharge of a jury without releasing the prisoner are sick ness of the judge; Nugent v. State, 4 Stew. & P. (Ala.) 72, 24 Am. Dec. 746 ; State v. Farrow, 8 Bax. (Tenn.) 571; or of his wife; State v. Tatman, 59 Ia. 471, 13 N. W. 632; sickness; Com. v. Clue, 3 Rawle (Pa.) 498; 2 Mood. & R. 249; 3 Crawf. & D. 212; 1 Thach. Cr. Cas. 1; Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695 ; State v. Emery, 59 Vt. 84, 7 Atl. 129; or other incapacity of a juror; U. S. v. Morris, 1 Curt. 23, Fed. Cas. No. 15, 815 ; People. v. Damon, 13 Wend. (N. Y.) 351; Stone v. People, 3 Scam. (Ill.) 326; Poage v. State, 3 Ohio St. 239; Dilworth v. Com., 12 Gratt. (Va.) 689, '65 Am. Dec. 264; but see 8 B. & C. 417; 8 Ad. & E. 831; Bar low v. State, 2 Blackf. (Ind.) 114; Com. v. Jones, 1 Leigh (Va.) 599; State v. Hall, 9 N. J. L. 256; death of a juror's wife; Cham ber of Commerce Bldg. Co. v. Klussman, 25 Oh. Cir. Ct. 728; sickness of the prisoner; 2 C. & P. 413; State v. Wiseman, 68 N. C. 203; Lee v. State, 26 Ark. 260, 7 Am. Rep. 611; or the death or insanity of a judge or juror; People v. Webb, 38 Cal. 467; Bescher v. State, 32 Ind. 480; expiration of a term of court; State v. Moor, Walk. (Miss.) 134, 12 Am. Dec. 541; Lore v. State, 4 Ala. 173; State v. M'Lemore, 2 Hill (S. C.) 680; in ability of the jury to agree; People v. Den ton, 2 Johns. Cas. (N. Y.) 275; Com. v. Pur chase, 2 Pick. (Mass.) 521, 13 Am. Dec. 452; Hurley v. State, 6 Ohio 399; U. S. v. Perez, 9 Wheat. (U. S.) 579, 6 L. Ed. 165; Rollins v. Nolting, 53 Minn. 232, 54 N. W. 1118 ; Pierce v. State, 67 Ind. 354; State v. Allen, 47 Conn. 121; State v. Blackman, 35 La. Ann. 483 ; State v. Washington, 90 N. 0. 664; Kelly v. U. S., 27 Fed. 6-16 ; contra, Coro. v. Cook, 43 S. & R. 577, 9 Am. Dec. 465 (a leading case, per Tilghman, C. J.) ; McCauley v. State, 26 Ala. 135 ; 3 Crawf. & D. 212; L. R. 1 Q. B. 289; Com. v. Fitzpatrick, 121 Pa. 109, 15 Atl. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757. But see Dye v. Com., 7 Gratt. (Va.) 662.
In Com. v. Clue, 3 Rawle (Pa.) 498, Gib son, C. J., held that mere inability to agree is not sufficient to justify discharge, nor the illness of two jurymen if it can be relieved by permitting them to have refreshments. In some states, statutes have provided for a discharge upon a disagreement ; Lee v. State, 26 Ark. 260, 7 Am. Rep. 611; Crookham v. State, 5 W. Va. 510 ; Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272.
After a jury has been sworn, but before the evidence has been begun, a juror may be discharged and another juror called, this being by consent of counsel for the accused ; Catron v. State, 52 Neb. 389, 72 N. W. 354. Where, in a felony case, the greater part of the evidence had been heard and a juror was discharged for illness and another one substituted and the evidence was then heard de novo, it was held no ground for a new trial; State v. Davis, 31 W. Va. 390, 7 S. E. 24. If, in a felony case, a juror becomes in capacitated by illness, a mistrial should be declared and the case be tried de novo; West v. State, 42 Fla. 244, 28 South. 430.
Insufficiency of the evidence to convict ; 2 Stra. 984; Andrews v. Hammond, 8 Blackf. (Ind.) 540; Klock v. People, 2 Park. Cr. Cas. (N. Y.) 676; U. S. v. Shoemaker, 2 McLean
114, Fed. Cas. No. 16,279; and sickness or other incapacity of a witness ; 1 Crawf. & D. 151; 1 Mood. 186; are not sufficient necessities to warrant the discharge of a jury. See Coro. v. Wade, 17 Pick. (Mass.) 399; U. S. v. Coolidge, 2 Gall. 364, Fed. Cas. No. 14,858 ; 2 Benn. & H. L. Cr. Cas. 337.
It is within the discretion of the trial judge to refuse to discharge the jury until they arrive at a verdict; Wilson v. Ry. Co., 2 Misc. 127, 20 N. Y. Supp. 852. A jury may be discharged from giving any verdict, when ever the court is of the opinion that there is a manifest necessity for the act, or that the ends of public justice would otherwise be defeated, and may even order a trial before another jury, and a defendant is not thereby twice put in jeopardy ; Thompson v. U. S., 155 U. S. 271, 15 Sup. Ct. 73, 39 L. Ed. 146.
When a jury in a criminal case is dis charged during the trial, and the defendant subsequently put on trial before another jury, he is not thereby twice put in jeop ardy within the meaning of the fifth amend ment to the United States constitution ; Sim mons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968.
See JEOPARDY; WITHDRAWING A JUROR.
Duties and privileges of. Qualified per sons may be compelled to serve as jurors under penalties prescribed by law. They are exempt from arrest in certain cases. See PRIVILEGE. They are liable to punishment for misconduct in some cases.
When improper questions are asked of a witness, by a juryman, and answered, if no objection is made or exception taken, no er ror is saved, and if inquiries are made by juryman with court's permission, failure of the court to interpose objections is not re versible error ; State v. Crawford, 96 Minn. 95, 104 N. W. 768, 822, 1 L. R. A. (N. S.) 839; as a general rule, though the cases are few, questions of witnesses by jurors seem to be permitted ; Chicago, M. & St. P. Ry. Co. v. Harper, 128 Ill. 384, 21 N. E. 561; Schaefer v. Ry. Co., 128 Mo. 64, 30 S. W. 331.
A frequent variation from the common laviT jury system is to permit the jury to impose the punishment (this being formerly considered a matter for judicial discretion), or, as in some states, to divide the responsi bility between the judge and jury; and such legislation is held constitutional ; Rice v. State, 7 Ind. 332; State v. Hockett, 70 Ia. 442, 30 N. W. 742 ; 1 Bish. N. Cr. L. § 934.
In criminal cases, in Scotland, a jury con sists of fifteen and a majority may convict. In Belgium, criminal and political charges and offences of the press are tried before a jury. Trial by jury has existed in Greece since 1834. In Sweden it exists in cases of offences of the press ; and in Italy, in crim inal cases, and a majority may convict. In Norway, it was established in 1887, and there also a majority may convict. In Russia, since 1864, all criminal cases involving severe penalties, except political offences, are tried by juries. Hawaii has a jury of twelve, both in civil and criminal cases, of whom nine may render a verdict. In South America, all the states have the jury system. In France, trial by jury exists in cases of felony, and it is provided in Germany, by the imperial code, in all criminal cases except treason, political crimes and offences of the press.