VAN LARE J.S.C.: This appeal is brought in order to challenge the right of the learned trial judge to discharge the jury without ascertaining from them, as the appellants were not charged with any offence punishable by death, what was the ratio of their non-unanimity. It has been contended that had the majority opinion of the jury been ascertained to be not less than five to two, that would have been held, taken to be, and received by the court as the verdict of the whole jury within the proviso to subsection (2) of section 298 of the Criminal Procedure Code.1(1) This subsection reads as follows:
“298. (2) If the jury are not unanimous in their opinion, the Judge shall, after the lapse of such time as he thinks reasonable, discharge the jury: Provided that a verdict of a majority of not less than five to two shall, in any case where the accused is not charged with an offence which is punishable by death, be held, taken to be, and received by the Court as the verdict of the whole jury.”
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