Levinz reports a case in the King’s Bench, “Foster _v._ Hawden,”
“wherein the jury, not agreeing, _cast lots_ for their verdict, and gave
it according to lot; for which, upon the motion of Levinz, the verdict
was set aside, and the jury were ordered to attend next term to be
fined.”
On an appeal of murder, reported in Coke, the killing was not denied by
the murderer, but he rested his defence upon a point of law, viz. that
the deceased had provoked him, by mocking him; and he therefore
contended that it was not murder. The judges severally delivered their
opinions, that it was murder; but the jury could not agree. They however
came to the following understanding--“That they should bring in, and
offer their verdict not guilty; and if the court disliked thereof, that
then they should all change their verdict, and find him guilty.” They
brought in a verdict of _Not Guilty_. The court demurred, and sent them
back; when, according to the above understanding, they returned again in
a few minutes with a verdict of _Guilty_.
In 1752, Owen, a bookseller, was prosecuted by the attorney-general, on
information, for a libel. The direction of the lord chief justice Lee to
the jury does not appear at full length in the State Trials, but it
seems that he “declared it as his opinion, that the jury ought to find
the defendant guilty.” The jury brought in their verdict “Not Guilty.”
The report proceeds to state, “that the jury went away; but at the
desire of the attorney-general, they were called into court again, and
asked this leading question: viz. “Gentlemen of the Jury, do you think
the evidence laid before you, of Owen’s publishing the book by selling
it, is not sufficient to convince you that the said Owen did sell this
book.” Upon which the foreman, without answering the question, said,
“Not guilty, not guilty;” and several of the jury said, “That is our
verdict, my lord, and we abide by it.” Upon which the court broke up,
and there was a prodigious shout in the hall.”