29-2023 Jury; discharged before verdict; effect; journal entry. - Nebraska Statutes

29-2023. Jury; discharged before verdict; effect; journal entry.In case a jury shall be discharged on account of sickness of a juror, or other accident or calamity requiring their discharge, or after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge shall be entered upon the journal; and such discharge shall be without prejudice to the prosecution. SourceG.S.1873, c. 58, § 485, p. 830; R.S.1913, § 9126; C.S.1922, § 10151; C.S.1929, § 29-2023; R.S.1943, § 29-2023.Annotations1. Discharge without prejudice2. Basis for discharge3. Journal entry4. Miscellaneous1. Discharge without prejudiceA mistrial because of disagreement of the jury is without prejudice to the right of the state to retry the defendant. State v. Fromkin, 174 Neb. 849, 120 N.W.2d 25 (1963).In a criminal trial where the jury is discharged in accordance with this section, such discharge is without prejudice to the prosecution. State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945).2. Basis for dischargeDrunkenness of juror is an accident or calamity requiring discharge of jury. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930).Serious illness of juror's wife and death of his child was sufficient to warrant discharge of jury. Salistean v. State, 115 Neb. 838, 215 N.W. 107 (1927).Where biased juror is discovered during progress of trial, court may discharge jury. Quinton v. State, 112 Neb. 684, 200 N.W. 881 (1924).Insanity of juror authorizes discharge, being an "accident or calamity." Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).3. Journal entryEntry of reasons on journal should be ordered; "sickness" must be of a sudden and calamitous nature. Conklin v. State, 25 Neb. 784, 41 N.W. 788 (1889).Record must show necessity for discharge. State v. Schuchardt, 18 Neb. 454, 25 N.W. 722 (1885).4. MiscellaneousHolding accused for trial after discharge of jury because of the jury's inability to agree is not former jeopardy. Sutter v. State, 105 Neb. 144, 179 N.W. 414 (1920).Court has large discretion as to length of time jury shall be kept together in consultation. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).