The State v. Nelson.

same rule was announced in Way v. Patty et al., 1 Ind. 102, and it may be regarded as a rule of property in this State, to be adhered to as such even if it were not correct in principle, and fully sustained by the weight of authority. The judgment is affirmed, with costs. J. Yaryan and J. S. Reid, for appellants. B. F. Claypool, for appellees.

THE STATE V. NELSON.

ONCE IN JEOPArdy.—DischargE OF JURY.—The discharge of a jury in a criminal case, because of their inability to agree upon a verdict, after a protracted deliberation, does not entitle the defendant to his discharge on the ground that he has been once in jeopardy.

APPEAL from the Marion Criminal Circuit Court.

FRAZER, J.-Nelson was indicted for grand larceny, and upon the plea of "not guilty" the case was given to a petit jury. After deliberating during the period of three days they had failed to agree upon a verdict, and stated to the court that there was no probability that they could agree. The court thereupon, on its own motion, discharged the jury from the further consideration of the case; the defendant objecting. Subsequently, on motion, the defendant was discharged from further custody upon the indictment; the prosecuting attorney excepting. The State having reserved the question raised by the action of the court below in discharging the prisoner, presents that question now for our consideration.

The provision of the State constitution forbidding the putting of a party "in jeopardy" more than once for the same offense, is found also in the constitution of the United States,

The State v. Nelson.

and in that of most of the States, and its embodiment thus as fundamental law, beyond the reach of ordinary legislative repeal, was probably but adopting and sanctifying a venerable maxim of the common law, which had been long and greatly cherished by that country from which the great body of our jurisprudence has been derived. Hypercritical analysis of the language of the constitution may make it mean more than the ancient common law maxim, as indeed a literal adherence to the exact words of any document will often result in giving it a meaning never intended to be conveyed by the terms employed. If common sense and historical knowledge are once discarded by our courts, when called upon to interpret constitutions, the results will hardly fail to create serious doubts whether a written constitution, difficult to change, is not after all a curse rather than a blessing.

An unequivocal proposition to declare by constitutional provision that the mere failure of a petit jury to agree upon a verdict in a criminal case should have the legal effect of a verdict of "not guilty," would, we think it safe to say, never have met the approbation of any convention in America, representing the people in their sovereign capacity. It is not admissible to suppose that the same proposition would be more favorably received if expressed in other language. It follows then, if the purpose of interpretation be to ascertain the true meaning of the instrument, that we are not to suppose that the constitution was intended to have the effect supposed, unless its language is incapable of any other reasonable interpretation. "No person shall be put in jeopardy twice for the same offense." In the strictest sense of this language, a second indictment of a party for the same offense would in all cases be forbidden. In that sense the party is put in "jeopardy," danger, hazard, liability to be punished, by the commencement of a prosecution against him. The bringing in of an indictment is, to use the language of an eminent judge, "an attack by the

The State v. Nelson.

commonwealth upon the life or liberty of the prisoner." But we believe that no authority can be found which maintains so broad a proposition. It is everywhere conceded that the "jeopardy" contemplated does not begin until a petit jury is sworn and "charged" with the offense. Epes' Case, 5 Grat. 676; Hines v. The State, 8 Humph. 597. So if the jury be afterwards discharged on account of the illness or death of a juror, or of the judge, or because the term of the court has expired, it is settled that the prisoner has not been in "jeopardy," and may again be put upon his trial. Fletcher v. The State, 6 Humph. 249; Mahala v. The State, 10 Yerg. 532; The State v. Curtis, 5 Humph. 601; The Commonwealth v. Fells, 9 Leigh 613; Hector v. The State 2 Miss. 166; The United States v. Haskell, 4 Wash., C. C., 402; Nugent v. The State, 4 Stew. & Port. 72; In Re Newton, 13 Q. B. 716; The State v. McLeman, 2 Hill S. C. 680; The State v. Battle, 7 Ala. 259; Moore v. The State, 1 Walk., (Miss.,) 134; Wright v. The State, 5 Ind. 290. Indeed it is conceded everywhere that where the jury has been discharged upon necessity, the prisoner may be again put upon trial. But the language of the constitution contains no exceptions, and the courts have no power to interpolate any; they must ascertain its meaning as it is written, and administer it accordingly, and in the cases cited there was no attempt to do more. The solid ground upon which those cases rest is that the language of the constitution was obviously never intended to embrace such cases. But it is virtually held in the most of the same states that the necessity which produced the discharge of the first jury must be a violent physical necessity, as distinguished from a moral necessity arising out of attendant circumstances, as, for example, the plain fact that the jury never can conscientiously agree upon a verdict, as in the case before us. Was it meant that, in such a case, the jury should nevertheless be kept in confinement for months, until the last moment of the term? Was it intended to require the observance of a foolish form

The State v. Nelson.

which it was morally certain would result in no advantage to the prisoner? We cannot bring ourselves to affirmative answers to these questions. We cannot so construe the constitution, for the reason that its language was, in our opinion, never intended to be so understood. Differing then from the spirit of what has been heretofore held in this State, and from the doctrine held in Pennsylvania, Tennessee, Virginia, North Carolina and Alabama, we are, however, in accord with the Supreme Court of the United States, and of Massachusetts, Mississippi, New York, Illinois and Kentucky. The United States v. Perez, 9 Wheat. 579; The Commonwealth v. Bowden, 9 Mass. 494; The Commonwealth v. Purchase, 2 Pick. 521; The People v. Goodwin, 18 Johns. 187; Moore v. The State, 1 Walker, (Miss.,) 134; Stone The State, 2 Scam. 326; The Commonwealth v. Olds, 5

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Lit. 137.

The law as thus held is essential to the efficient administration of the criminal code, and the consequent protection of society. It removes in a large measure the temptation to tamper with jurors for the purpose of preventing an agreement, renders it less probable that any juror will from unworthy motives refuse to find according to the law and evidence, closes a door against the escape of the guilty, and does not operate as an unreasonable hardship upon the innocent who may be falsely accused of crime. It does not follow that the defendant may not avail himself of any abuse of discretion by the judge in discharging the jury without sufficient cause. The circumstances may always be made matter of record, and unless a proper case is shown to justify the action of the court, the discharge will be held equivalent to a verdict in favor of the defendant.

In the case before us the jury had deliberated seventytwo hours. That further confinement could have resulted in an honest agreement is not within the range of probability. Further consideration, if we assume that the jury was composed of intelligent, honest men, must have produced nothing but a confirmation of conclusions already formed. To VOL. XXVI.—24.

The Indianapolis and Cincinnati Railroad Company v. McClure.

have kept them longer, would have been to inflict punishment for failing to surrender deliberate opinions. They might possibly have thus been forced by exhaustion or suffering to assent to a verdict, but it would have been rather a decision upon the physical endurance of the jurors, than a finding upon the law and evidence. We have outgrown the ancient practice of carting juries from shire to shire in the train of the judges, or of denying them meat and drink for the purpose of forcing them to agree. In the view of existing law and civilization a verdict is the honest accord of twelve intelligent minds upon the issue submitted to them, and a form of words extorted by force or suffering ought never again to be heard of in a court of justice.

The judgment is reversed, and the cause remanded with directions to proceed according to this opinion.

W. W. Leathers, for the State.

J. W. Blake, for appellee.

THE INDIANAPOLIS AND CINCINNATI RAILROAD COMPANY U. MCCLURE.

TRESPASS.-DUTY OF OWNER OF DOMESTIC ANIMALS.-The common law imposes upon the owner of domestic animals the duty of keeping them on his own land or within inclosures, and he becomes a wrong doer if any of them escape or stray off upon the lands of another person. RAILROADS.-INJURY TO ANIMALS.-A railroad company is not liable for an animal killed on the track at a point where the company was not bound to fence, unless it was killed by the gross negligence or willful misconduct of the company's agents. MUTUAL NEGLIGENCE.-EXCEPTION TO GENERAL RULE.-The general rule that a plaintiff cannot recover if his own negligence contributed to the injury is subject to this exception: If the wrong on the part of the defendant is