" A _venire de novo_ was ordered. The principal difference between
this case and the one under consideration is, that in the latter the
Court directed the clerk to enter the verdict, and in the former he was
allowed to do so, and in the latter the Court denied liberty to the
jurors to dissent from the verdict, and in the former the Court allowed
such dissent.
With what jealous care the right of trial by jury in criminal cases has
been guarded by every English speaking people from the days of King
John, indeed from the days of King Alfred, is known to every lawyer and
to every intelligent layman, and it does not seem to me that such a
limitation of that right as is presented by the proceedings in this
case, can be reconciled either with constitutional provisions, with the
practice of courts, with public sentiment on the subject, or with safety
in the administration of justice. How the question would be regarded by
the highest Court of this State may fairly be gathered from its decision
in the case of _Cancemi, 18 N.Y., 128_, where, on a trial for murder,
one juror, some time after the trial commenced, being necessarily
withdrawn, a stipulation was entered into, signed by the
District-Attorney, and by the defendant and his counsel, to the effect
that the trial should proceed before the remaining eleven jurors, and
that their verdict should have the same effect as the verdict of a full
panel would have.
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