Commonwealth v. Burke , 82 Mass. 32 ( 1860 )

Bigelow, C. J.

We can see no error or irregularity in the proceedings at the trial of this cause. After the first trial upon two counts of the indictment, which resulted in a disagreement of the jury, the defendant was still liable to be tried on the whole indictment, and it was a matter entirely within the discretion of the prosecuting officer to determine whether she should be again tried on the whole or any part of the charge at the same term of the court. The only limitation in the exercise of this discretion was that the two counts upon which the disagreement had taken place could not be again put to the same jury. But as to the offence charged in the count which had not been tried, the jury could not be supposed to be under any bias or prejudice. The rights of the defendant are in no respect different from what they would have been if the charge had been set out in a separate indictment. It is the constant and well settled practice to put a defendant on trial for a crime before a jury who have previously tried him at the same term of the court for similar offences.

Exceptions overruled.