State v. Gamble , 18 Del. 368 ( 1899 )

Lore, C. J.:

In this case, the jury were out between two and three hours. They returned and reported in open Court at the end of that time, that there was no possibility of any agreement, however long they might be kept out. From the well known character cf the jury, upon careful inquiry, and from all the circumstances ■surrounding the case, the Court was satisfied that a verdict would not be reached. Thereupon, in the presence of the defendants and their counsel, and without objection on their part, the Court discharged the jury.

It is conceded, that the discharge of the jury in such cases is in the discretion of the Court. This is the generally accepted rule, and needs no citation of authorities.

In this State it is no longer an open question.

In the case of the State vs. Carberry (unreported), which was an indictment for murder of the first degree; tried in the Court cf Oyer and Terminer for New Castle County in 1881, the jury reported that they could not agree and were discharged by the Court without the consent of the accused. After an elaborate and exhaustive argument, by very able counsel, which occupied about two days, the Court held, that the discharge of the jury, which reported it could not agree, was within the discretion of the Court. This case is decisive of the question.

We therefore refuse to discharge the prisoners.