The defendants are under indictment for the crime of having had in their possession, with intent to fraudulently use the same, molds with an inscription thereon in the likeness of the inscription on dies' used for coining genuine silver coins of the United States. They were placed upon trial before the court, and a jury impaneled to determine the question of their guilt or innocence, and thereafter, on May 28, 1903, at 1:3o o’clock p. m., the cause was regularly submitted to the jury for decision. The jurors were unable to agree upon a verdict, and were discharged by the court at 4 o’clock and 5 minutes p. m. of the same day. The entry upon the minutes of the court, so far as relates to the pending question, is as follows:

Upon the foregoing facts, and an affidavit to the effect that after the jurors retired to deliberate upon their verdict they were absent from the jury room for one hour for luncheon, attended by an officer of the court, the defendants ask to be discharged. In support of this motion counsel for defendants insist that the jurors were not given a reasonable time for deliberation, and were discharged without any necessary or reasonable cause therefor, and, such being the fact, it is argued that to again place the defendants upon trial would be in violation of rights secured to them by the fifth amendment of the Constitution of the United States, which declares that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The question thus presented is one which the court *742 may properly determine upon the motion of defendants for their discharge. United States v. Haskell, 14 Wash. C. C. 402 , Fed. Cas. No. 15,321; People v. Goodwin, 18 Johns. 187 , 9 Am. Dec. 203 .

The contention of defendants that the jury was discharged without any legal necessity therefor is not sustained by the record, which shows that such discharge was ordered by the court because of the inability of the jurors to agree upon a verdict. The discharge of the jury for such a cause is not, in judgment of law, equivalent to an acquittal, and when a defendant is subsequently placed upon trial before another jury for the same offense he is not thereby “twice put in jeopardy, within the meaning of the fifth amendment to the Constitution of the United States.” Thompson v. United States, 155 U. S. 271 , 15 Sup. Ct. 73, 39 L. Ed. 146 ; Logan v. United States, 144 U. S. 263, 298 , 12 Sup. Ct. 617, 36 L. Ed. 429 . In the case of United States v. Perez, reported in 27 Fed. Cas. 504 , Fed. Cas. No. 16,033, it appears that the defendants had theretofore been placed upon trial before a jury upon a charge of piracy. The jurors, after deliberating four hours, informed the court that there was no prospect of an agreement, and were then discharged without the rendition of a verdict. The defendant thereupon moved to be discharged on the ground that the jury had been improperly discharged by the court. The Circuit Justice (Thompson) was of the opinion that the motion should be denied, and in giving his reasons therefor said:

But, as the judges were divided in opinion, the question was certified to the Supreme Court for its decision, and in giving its opinion the court, by Mr. Justice Story, said:

These views are conclusive upon the question presented by the present motion; but in closing this opinion it is not improper to add that *743 in this case the discharge of the jury was not arbitrary or capricious. The conclusion of the court that there was a necessity for such action because of the inability of the jury to agree was based upon legal evidence; that is to say, the declarations of the jurors to that effect, made in open court, considered in connection with the length of time they had deliberated, and the nature of the evidence before them. The declarations of jurors, while not conclusive, are proper evidence for the consideration of the court in determining whether there is any reasonable probability that longer deliberation would result in a verdict. People v. Harding, 53 Mich. 481 , 18 N. W. 555 , 19 N. W. 155 , 51 Am. Rep. 95 ; State v. Haber (Kan. Sup.) 59. Pac. 1080, 48 L. R. A. 254. The length of time which is sufficient for proper deliberation upon the part of the jury must, from the necessity of the case, rest in the discretion of the court—a discretion to be exercised in view of all the circumstances of the particular case; and it has been held that, when the court has discharged the jury for inability to agree, no exception to its action “can be sustained on the ground that it was sooner than it ought to have been.” Commonwealth v. Townsend, 5 Allen, 216 ; People v. Green, 13 Wend. 55 ; People v. Harding, 53 Mich. 48, 481 , 16 N. W. 555 , 19 N. W. 155 , 51 Am. Rep. 95 . In the last case it was said by Cooley, C. J.:

The motion to discharge is denied.