#### STATE v. HENRY TILLETSON.

Where a prisoner was put upon trial for larceny, and the term expired before the jury could agree upon their verdict, and they left their room and dispersed without agreeing, and the defendant was suffered to go at large, it was Held that the solicitor might, without leave of the court, cause a capias to issue against defendant, and cause him again to be put on trial.

This was a motion to quash an indictment for larceny, heard before Dick, J., at the last Fall Term of Granville Superior Court.

The defendant, in this case, was indicted in the County Court, and on being put upon his trial there, the jury failed to agree upon a verdict, and at the hour of twelve o’clock at night, on Saturday of the term, the Court announced that the term had expired, and left the bench without discharging the jury, and the jury left their room and dispersed without agreeing on a verdict. The prisoner was not recognised to appear at the next term, but was suffered to go at libeity. After-wards, the solicitor caused another capias to be issued against the defendant for the same offense, commanding him to answer at the next term. The defendant appeared at said next term and filed his affidavit, setting out the above state of facts, whereupon the Court ordered the proceedings to be quashed and the defendant discharged. From this judgment the solicitor took an appeal to the Superior Court, where the *115judgment of the County Court was affirmed, and the State appealed to this Court.

Attorney General, for the State.

Lanier, for the defendant.

Manly, J.

The points presented to this Court, by the appeal of the solicitor for the State, are, first: whether, when the j ury fails to return a verdict in a ease of lareeny, in consequence of the expiration of the term, the accused may be put upon his trial again; and if he may, secondly, whether the prosecuting officer can, without special leave of the Court, cause a capias to be issued.

It seems now to be settled law, that in cases of misdemean- or, the Court has a discretion to withdraw a juror, and order a venire de novo, when it appears necessary to the ends of justice. This was affirmed in the case of the State v. Morrison, 3 Dev. and Bat. Rep. 115, and also in the case of the State v. Weaver, 13 Ire. Rep. 203. This latter case was an indictment for receiving stolen goods, which the statute puts upon the same footing’ with larceny, in all respects, except in classification. It is, therefore, as we conceive, an authority for the exercise of the power by the Court in a case of larceny.

The indulgence of such a power, in capital felonies, underwent much discussion in the cases of Spier and Ephraim, reported in 1 Dev. Rep. 491, and 2 Dev. and Bat. Rep. 162 ; and by the courts’ action, in those cases, the power is denied in felonies of that class, except in cases of supreme and inevitable necessity. In the first of these cases, the expiration of the term, was held not to be such a case of necessity. These cases may be considered as settling the law in respect to the class of felonies of which they treat, but the restricted range of judicial power, as established in them, has never been applied to offenses of inferior grades, whether felonies or misdemeanors, and we think it is not applicable. The power, nevertheless, is not an arbitrary, one, but should be resorted to -only where it seems to the Court, in the exercise of a sound legal discretion, to be necessary.

*116We have dwelt more on this power of the Court to direct a mistrial, because, we consider it settles the point made in the case before us. For, if the solicitor may nole. pros, at will and issue a capias unless restrained, and bring the defendant up for trial again, (which is admitted to be legal,) and if the Court may, in the exercise of its discretion, direct a mistrial and order a venire de novo, much more, it seems to us, will a new jury be proper, where there has been a mistrial, caused by operation of law, by an event which comes like an interposition of Providence — which neither party has contrived to bring about, and which neither has had the power to hasten or retard.

The objection to the exercise of this power on the part of the courts, is, that it might lead to the wilful oppression of the citizen. No such objection can apply when the power is not called into action at the will of the Court, but is a preexistent rule of law, for the intervention of which, one party is no more responsible than the other.

The only doubt is, whether it be not such a prevention of trial as would justify a venire de novo in any grade of offense; whether it be not one of those inevitable events, springing from the short and definite limits of our sessions, which ought to have been classed with such accidents as the death or violent sickness of a judge or juror, the sudden and violent sickness of a witness and the insanity of the prisoner, all of which present cases for a mistrial and a venire de novo, even in capital cases.

If the Court would have ■ had the right to anticipate the moment when the term closed and its powers ceased and call in and discharge the jury, and thereuppn hold the defendant subject to a future trial, it will follow that he may, with equal right, be held for trial when there has been a discharge by law ; a legal dissolution. The failure of the Judge to act, has placed the culprit in no worse situation ; on the contrary, the course pursued was the most favorable one for the attainment of his rights. • He has been allowed every moment of the term to get a verdict in, and of this he cannot justly complain.

*117The second point of objection made to the proceedings below, is, as to the power of the solicitor for the State, without special leave, to cause a capias to be issued. We are of opinion, this power exists. The defendant being subject to be tried again, the process by which alone it could be effected, followed in the ordinary course of proceeding. There was no legal discretion in the Judge to refuse it, and, therefore, leave was not necessary to give it validity.

Authority for this, will be found in the case of the State v. Thompson, 3 Hawks, 413.

The judgment of the Court below, quashing the capias and proceedings, is reversed, and the solicitor, for the State, is allowed to put defendant upon his trial again.

Pee Curiam,

Judgment reversed.