Statutory close of term of court. - Except in North Carolina, g this has been held to justify a discharge, which is no bar to a second trial. h

Sickness of judge. — This, as has been already noticed, is sufficient ground, under the same limitation, as the sickness of a juror. i

Death of judge. The death of a judge, to whom a case was submitted by consent, for decision without a jury, such death being before decision rendered, does not relieve a defendant, in an indictment for misdemeanor, from a second trial. And the same rule exists as to the death of a judge during a trial before a jury.j1 Sickness or incapacity of witness. — In Ireland, this has been held not to constitute ground to discharge the jury, even though the witness was essential to the prosecution; and when a discharge was made in such case, it was held that the prisoner could not be tried again. k Such sickness has been held in America ground for postponing a trial, but not, unless corruption be shown, for discharging a jury. I

Whether the court will adjourn a trial on account of the incapacity of a witness, is hereafter discussed. m

§ 590. (e.) Until jury are" charged" jeopardy does not begin. - However conflicting the cases may be as to what legal necessity justifies a discharge, they unite in the position that until the jury are "charged " with the offence, the jeopardy does not begin. Until they are sworn, it is not necessary that they should be kept together as "empanelled." The general court of Virginia, which adopts, as has been seen, the extreme view of the

g Spier's case, 1 Devereux, 491; though see, as overruling this, State v. Tillotson, 7 Jones, 114.

h R. v. Newton, 13 Q. B. 716; 3 Cox C. C. 489; State v. McLemore, 2 Hill S. C. 680; State v. Battle, 7 Alabama, 259; People v. Thompson, 2 Wheeler C. C. 473; State v. Moor, 1 Walker (Miss.), 134; Mahala v. State, 10 Yerger, 532; State v. Brooks, 3 Humphreys, 70; Himes v. State, 8 Humphreys, 597; Ned v. State, 7 Porter, 187; Wright v. State, 5 Ind.

290.

i Nugent v. State, 4 Stewart & Por

ter, 72.

j Bescher v. State, 32 Ill. 480; see post, § 3392, 3411.

j1 People v. Webb, 38 Cal. 467; post, § 3392, 3411.

k R. v. Kell, 1 Crawford & Dix, 151; see R. v. Wade, 1 Mood. C. C. 86; R. v. Oulaghan, Jebb's C. C.

270.

I U. S. v. Coolidge, 2 Gallison, 364; Com. v. Wade, 17 Pick. 397; see post, § 3168, 3308.

m Post, § 3168, 3305.

"once in jeopardy" guarantee, has held that until the oath was administered, the jury were not in the custody of the sheriff, because they were not "charged; "m1 and the Tennessee supreme court, also holding the same view, has sustained a conviction where after a juryman was selected, but before he was sworn, he was withdrawn by the court, because found to be a minor; n and in Illinois, it was held correct, in a capital case, as has just been observed, to strike off a juryman, after the jury were sworn, on the ground that he was an alien. o So also it has been held in Pennsylvania, p where the court, after the jury had been sworn, struck off a juryman on the ground that he was incompetent from irreligion and prejudice. A fortiori, therefore, neither a nolle prosequi, when entered before empanelling a jury, q nor an ignoring by a grand jury, r nor a discharge on habeas corpus, 8 has the effect of relieving the defendant from further prosecution.

"Charging" the jury, is addressing the jury as follows: —

"Gentlemen of the jury, look upon the prisoner and hearken to his charge; he stands indicted by the name of A. B., late of the parish of, &c., laborer, for that he, on, &c. [reading the indictment to the end]. Upon this indictment he hath been arraigned; upon his arraignment he hath pleaded not guilty; your charge, therefore, is to inquire whether he be guilty or not guilty, and hearken to the evidence." t

This does not take place until after the jury are sworn, u and is not usual in misdemeanors. v

§ 591. (f.) Consent of prisoner to discharge. - The more general opinion is that the prisoner may waive his constitutional privilege by a consent to the discharge of the jury, v1 or to their

m1 Epes's case, 5 Grattan, 676. Post, § 3305.

n Hines v. State, 8 Humph. 597. o Stone v. State, 2 Scam. 326. p Com. v. McFadden, 11 Harris, 12. q Ante, § 544; see Com. v. Dunham, Thach. C. C. 513; Brown v. State, 5 Eng. 607; Com. v. Drew, 3 Cush. 279; Com. v. Thompson, 3 Litt. 284. r Ibid.

8 Ibid.

t See for a shorter form, Trial of R. Smith, Philadelphia, 1816, Wharton on Homicide, 388, 389.

u 1 Ch. C. L. 555; Dickin. Q. Sess. 493.

v Ibid.

v1 See Stewart v. State, 15 Ohio St. R. 161; R. v. Deane, 5 Cox C. C. 501; People v. Webb, 38 Cal. 467; but see State v. Tuller, 34 Conn. 280; see post, § 3175.

separation, w by a motion in arrest or vacation of judgment, x or by a motion for a new trial. y But that such consent can be made operative in a capital case has been denied in Pennsylvania, z Tennessee, a Louisiana, b Mississippi, c and California. d

In England it is settled that the maxim, that a man cannot be put in peril twice for the same offence, means that a man cannot be tried again for an offence upon which a verdict of acquittal or conviction has been given, and not that a man cannot be tried again for the same offence where the first trial has proved abortive, and no verdict was given. Hence, as a judge has, by the English law, a discretionary power, in cases of necessity, to discharge the jury, even without the prisoner's consent, this discharge is no bar to a second trial. And such necessity exists when the jury have shown themselves unable to agree. The exercise of this discretion cannot be renewed on error affirmed on appeal. e But even in England, consent, in capital cases, does not cure an irregular discharge. el

Whether on a new trial being granted after a conviction for manslaughter the offence of murder is reopened, has been already considered.f

(g.) In misdemeanors the jury may be allowed to separate at any time.

This subject will be considered more fully under a future head. g

w Dye v. Com. 7 Gratt. 662; Williams v. Com. 2 Gratt. 567; Elijah v. State, 1 Humph. 102; R. v. Stokes, 6 C. & P. 151. Post, § 3305.

x State v. Arrington, 3 Murph. 571; Com. v. Fischblatt, 4 Metc. 354; Page v. Com. 9 Leigh, 683.

y U. S. v. Perez, 9 Wheaton, 579; Com. v. Clue, 3 Rawle, 500; Com. v. Brown, 3 Rawle, 207; Com. v. Murray, 2 Ashmead, 41; State v. Greenwood, 1 Hayw. 141; State v. Jeffreys, 3 Murphey, 480; State v. Lipsey, 3 Dev. 485; State v. Sims, 2 Bailey, 29; Ball's case, 8 Leigh, 726. See post, § 3175, 3305, &c.

z Pieffer v. Com. 3 Harris, 469. See post, § 3303-5.

a Wesley v. State, 11 Humph. 502; Wiley v. State, 1 Swan, 256. b State v. Populus, 12 La. Ann.

710.

c Woods v. State, 43 Missis. 364. d People v. Backus, 5 Cal. 275; but see post, § 3309.

e R. v. Winsor, 6 B. & S. 143; 1 L. R. Q. B. 289; L. R. Q. B. 390; S. C. in Ex. Ch. 7 B. & S. 490. See also, R. v. Ward, 10 Cox C. C. 573; R. v. Charlesworth, 1 B. & S. 460; S. C. 9 Cox C. C. 44.

el R. v. Perkins, Holt, 403; see R. v. Kell, 1 Crawf. & Dix, 151; post, § 3175.

f Ante, § 550.

g See post, § 3168, 3305.

Form of plea. h-An allegation "that the said defendant had once before been put in jeopardy of his life for said offence, upon said indictment," is demurrable, if it does not show how or in what manner; otherwise if the facts constituting the jeopardy are alleged. i

7. Plea of Pardon.

§ 591 a. Definition and classification of pardon. - Pardon, in its technical legal sense, is a declaration on record by the sovereign that a particular individual is to be relieved from the legal consequences of a particular crime. It is susceptible of being viewed in three distinct relations :

First. Pardon before conviction, or abolitio, as it is called by the old writers. This form of pardon will presently be noticed more fully. It is enough now to say that it is prohibited by the constitutions of several of the United States, as well as by those of most of the modern European sovereignties, e. g. Prussia, Belgium, Bavaria, &c. Wherever the power exists, it should be cautiously exercised, and its grants rigidly construed, for the reason that it breaks the course of even public justice, and selects an individual as the object of capricious executive favor.

Second. Pardon after conviction, which is either full or conditional, aggratiatio plena vel minus plena. g1 This is the ordinary form of pardon, and is granted, sometimes, because the sentence requires revision, sometimes from the good conduct of the defendant since conviction, sometimes from general motives of clemency. To this and the following kind of pardons applies the position to be hereafter noticed, that in cases of doubt the presumption is to be in favor of the grantee.

Third. Rehabilitation Restitutio ex capite gratiæ. This consists in a restoration to the pardoned person of the status and rights he possessed before his pardon. In Anglo-American practice this is illustrated by the removal of the technical infamy which incapacitates him as a witness, and the restoration of confiscated effects not vested in others.

It

Amnesty differs from pardon in some essential particulars. is addressed not to an individual but to a population; and it is

h See forms of pleas in Wh. Prec. 1157.

i Atkins v. State, 16 Ark. 568; Wilson v. State, 16 Ark. 601.

gl Berner, Lehrbuch, 1872, p. 313.

as much in the nature of a compact as of a grant. It says, "Lay down your arms, and your rebellion shall be treated as if it did not exist." Nor is this altered by the fact that the party addressed is at the time conquered. No state can last that retains within its borders a perpetual revolt; and it is to close the revolt, and to transmute enemies into willing subjects, that an amnesty is issued. Another chief point of distinction between pardon and amnesty is, that the former merely relieves from the legal consequences of the guilty act, while the latter cancels the guilty act itself. It is an extinction even of the memory of the past, amnestia, an act of oblivion. Hence amnesties are always construed indulgently towards those by whom they are accepted. In dubio mitius, is a maxim which applies to them as well as to pardons. But to amnesties belong the additional consideration that no government, without forfeiting all confidence in its faith, can prosecute those whom it induces to surrender themselves to it on the plea that the offence prosecuted should be treated as if it did not exist. g2

an

Pleading. - Pardons may be viewed as either statutory or executive. A statutory pardon, or act of grace or amnesty, need not, it is said, be pleaded, but may be put in evidence under the general issue. If a public act, the courts, under such circumstances, are bound to take notice of it. k But it is more prudent specially to plead an act of amnesty, since, if the court should refuse to receive it under the general issue, the error would be too late to be repaired. 7

An executive pardon should be specially pleaded, and should be produced under the great seal. It is said that it may be orally pleaded, m but it is better that it should be pleaded formally in writing. Unless specially pleaded, it will not be noticed by the