Korsah, C.J. delivered the judgment of the court. (After stating the facts his lordship continued): It is necessary to say, firstly, that when jury presented a unanimous verdict that the accused was guilty of murder they had discharged their function in the trial, and could not be permitted to take any further part in the proceedings. When, therefore the foreman of the jury informed the court that their verdict was not in a unanimous verdict, they should have been informed by the learned trial judge that a note would be taken of the statement in question for the information and consideration of the Court of Appeal. This was of special importance in view of the fact that it was after the sentence of death had been solemnly passed that the foreman of the jury intervened.
What, however, in fact followed (and for which no precedent can be found in the annals of the law) was that the learned judge respited death sentence, and appears to have ordered what may justly be termed a retrial of the prisoner before himself and the same jury, whose oath had been exhausted by their first verdict, and when the learned judge himself having passed sentence, was functus officio. In doing this, the learned judge assumed to himself powers which neither he nor this court possessed. He unfortunately, does not seem to have realised that when the verdict was returned, and sentence thereon pronounced, the prisoner passed out of the charge of the jury, and beyond his own jurisdiction, and was by the very words of the sentence placed in charge of the Prison Authority, to be dealt with in accordance with the law and with the Governor-General's directions.
A further error followed when the prisoner, having been arraigned on a charge punishable with death, the learned trial judge (ignoring the proviso to section 298 (2) of the Criminal Procedure Code) proceeded to accept a majority verdict of five jurors who "agree that the accused is not guilty of murder but guilty of manslaughter, and two jurors disagree." It must be assumed from this that two jurors found the accused guilty of murder, otherwise they would have expressed themselves in the words "Not Guilty." Where, upon a charge of murder, the jury cannot agree on their verdict, the judge has no alternative but to discharge the jury and leave the matter to be dealt with by a fresh jury. It is only where the offence charged is not punishable by death that a majority verdict may be accepted.
Even if the announcement by the foreman of
