The facts of the case fully appear in the following statement by Mr. Justice GRAY.
This was an indictment on section 5209 of the Revised Statutes for aiding and abetting one Claassen in embezzling and misapplying the funds of a certain national bank in the city of New York. The defendant pleaded not guilty. On January 26, 1891, the case came on for trial upon the issue thus joined; a jury was impaneled and sworn; Goodnow, one of the jurors, stated on his voir dire that he had no acquaintance with the defendant, and had never seen him to his knowledge; the case was opened to the jury; and on that and following days witnesses were examined on behalf of the United States. Before the coming in of the court on Friday, February 6th, the district attorney received, and exhibited to the defendant's counsel, and to the judge, an affidavit of one Ward to the effect that during four months in 1884 the juror Goodnow and the defendant occupied adjoining rooms in a building in the city of New York, and were often seen conversing together in the halls of that building. The court thereupon adjourned the trial until Monday, February 9th. In the afternoon of February 6th, the district attorney received from the defendant's counsel a letter commenting upon the statements in Ward's affidavit, and denying their truth, asserting that Ward had had a quarrel of long standing with the defendant, and stating that he had sent a copy of the letter to the daily papers; and the substance of this letter was published in the morning papers of February 7th. On the coming in of the court, on February 9th, the district attorney read affidavits to the foregoing facts, together with Ward's affidavit, the letter of the defendant's counsel, and the publication in the newspapers, and thereupon moved the court 'to withdraw a juror, for the reason that, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.' In opposing this motion, the defendant's counsel admitted the making of Ward's affidavit, its communication to the counsel on both sides and to the court, and the writing and publication of the letter; but submitted an affidavit of the defendant denying that he had ever known Goodnow, or had ever to his knowledge seen him before the trial, as well as an affidavit of the counsel explaining his action, and stating that he wrote and published his letter because he had been informed that the reasons for the adjournment of the court had been made public by the district attorney. The judge gave his decision upon the motion as follows: 'I am of the opinion that the facts presented make it necessary to discharge the present jury from further consideration of this case, in order to prevent the defeat of the ends of justice, and to preserve the rights of the people, and also to preserve the rights of the accused to be tried by a jury, every member of which can render a verdict free from constraint. It is manifest that the knowledge respecting the statement made by Ward, conveyed to the jury by the publication of the letter of the defendant's counsel, makes it impossible that in the future consideration of this case by the jury there can be that true independence and freedom of action on the part of cach juror which is necessary to a fair trial of the accused.' And after Goodnow and other jurors, being asked by the judge, had answered that they had read the publication in the newspapers, he added: 'Therefore such a publication, under the peculiar circumstances attending it, affords, in my opinion, a sufficient ground to discharge the jury at this time.' The judge thereupon ordered a juror to be withdrawn and the jury discharged. The defendant excepted to this order, and moved for an acquittal because of such discharge of the jury, and excepted to the denial of his motion. On February 12th the case came on for trial before another jury, and a motion of the defendant to file a plea in bar on the ground of rormer jeopardy was opposed by the district attorney, and denied by the court, and to this denial the defendant excepted. The case was then tried, and was submitted by the judge to the jury on March 10th under instructions beginning as follows: 'I have the right, under the laws of the United States, to give you my opinion on questions of fact, but I refrain from doing so, because I am well satisfied of your capacity to understand what has been testified to in all these days that we have been here engaged.