John Varnes v. The State, 20 Tex. Ct. App. 107

White, Presiding Judge. A single question is presented in this record, and that is, did the court err in instructing the jury in this case that they should find the defendant’s pleas of jeopardy and former acquittal untrue? On the former trial, which was pleaded as a bar, the jury retired to consider of their verdict at 11:30 o’clock, A. M.; and at 5:30 o’clock, P. M., of the same day they returned into court and stated that they could not agree, their disagreement being entirely upon the weight of evidence.

Defendant having objected to their discharge, they were sent back by the court and kept until the next morning at 8 o’clock, A. M., when they again came into court and announced that it was altogether improbable they could agree,— that they fully understood the law, but could not agree upon the facts, and that it was impossible for them to agree. They were then discharged by the court over objections of defendant. Under the facts stated we cannot say that the court abused the discretion which is confided to courts by

article 701, Code Criminal Procedure, to discharge juries “ when they have been kept together such a length of time as to render it altogether improbable they can agree.” It is only where the discretion thus conferred has been, abused to the injury and prejudice of a defendant’s rights that this court will interfere to revise and reverse it. (Powell v. The State, 17 Texas Ct. App., 345; Schindler v. The State, 17 Texas Ct. App., 408.) [Opinion delivered December 16, 1885.] Ho error is made apparent as to the action of the court in this case, with reference to the plea of jeopardy and former acquittal, and the judgment is therefore affirmed. Affirmed.