State ex rel. Battle

COLLIER, C. J. — In respect to the first ground on which the petitioner prays a mandamus, we would remark that in our judgment it assumes too much. It supposes that a Court must continuo its session up to the very last moment of the term which the law has prescribed for its limitation, before it is permissible to discharge a jury who affirm that they cannot agree upon a verdict; and this too, although all other business before the Court may be disposed of. The terms of most of the Circuit Courts are limited, that is, 'have a certain time given, within and beyond which they shall not discharge the business assigned to them as Courts. But there is no obligation upon a Judge to continue his Court in session after he has disposed of the business before it, more than a reasonable length of time, to receive the verdict of a jury to whom a criminal cause has been committed, and who report their inability to agree. If the law were otherwise, there could be no final adjournment, until the last moment of the last day of the term, without a discharge of an offender whose case was before a jury undetermined. And as some of our Courts have no other limitation than from the Spring term to the Fall riding, or vice versa, these must necessarily be kept open for months to await the deliberations of a jury in such a case. We are satisfied that -.the law does not impose such a duty upon the Judge. From the condition of the record, we would infer, if necessa-ay, that although the petitioner’s case was submitted to the jury on Friday, and they w.ere discharged on that day, yet a reasonable time was afforded them for deliberation before the adjournment of the Court. The affirmation upon the record that such was the fact need not have been made, it is enough that the reverse is not shown. The case of Burns v. The State is unlike the present. There the prosecutor was taxed with the cost's by the Circuit Court, without assigning a cause for such an order, and it was here held that as the statute only ¡conferred the power to tax the prosecutor with costs, where [262] the prosecution appeared to the Court to be frivolous or malicious, an order for that purpose should affirm that such was the fact. In the State v. Hughs, 2 Ala. Rep. 102, we determined that' the verdict of guilty in a case capitally punished could not, if adverse to the prisoner be received in his absence, but if it was, he should.not be discharged, but might be tried de novo. This. case is one of a lower grade of offence, yet we apprehend, that if a party in a case like the present, submit his case to a juiy and escape, that the Court are not bound to receive their verdict in his absence. It cannot be intended that the jury had agreed to acquit the petitioner, but if any presumption was indulged, it should be adverse to him, as he sought safety in flight. Be this as it may, as the petitioner was not forthcoming to abide the judgment of the Court, it is entirely proper to order a mistrial. The discharge of the jury, had the effect to vacate their finding, and an order to “ erase” it, was an act of supererogation, which did not prejudice the petitioner, and he can consequently derive no benefit from it. The consequence is, that the prayer of the petitioner is denied, without stopping to inquire whether if the grounds stated in the petition were well-founded, the remedy by mandamus would be proper.