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Common rea

ciple here indicated is one of common law and son only, not embraced in our constitutions; liable, therefore, to be overridden by a legislative act.” Yllionqué

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§ 655 b. Looking at the matter in the light of adjudication, we find, that the same act, as, for instance, of counterfeit ing the coin,may be made an offence against both the United States and a particular State. and, though the provisions of the United States constitution would not prevent it from being pursued by the courts of both governments, as an offence against both, yet the better opinion seems to be the one just proposed, that, after the tribunals of the one government have dealt with an offender, those of the other will decline prosecution.4

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§ 656. Secondly. The Offences to which this Rule of Constitutional Law is applied. The reader has observed in what words this constitutional provision is expressed; namely, that the offender shall not be twice put in jeopardy of "life or limb." The construction of which words is, that properly the rule extends to all felonies, not to misdemeanors.5 Yet practically and wisely, the courts have applied it to misde meanors also; but not to actions qui tam, and the like,

for the recovery of penalties, not being criminal proceed

1 Ante, § 613; Moore v. Illinois, 14 How. U. S. 13. See Fox v. Ohio, 5

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• See Commonwealth v. Fuller, 8 Met. 313; Harlan v. People, 1 Doug. Mich. 207, 212; Houston v. Moore, 5 Wheat. 1, 31, 35; People v. The Sheriff, 1 Parker, 659. But see The State v. Pitman, f Brev. 32; Hendrick v. Commonwealth, 5 Leigh, 707; Manley v. People, 3 Seld. 295, 302, 303; Fox v. Ohio, 5 How. U. S. 410, 430; ante, § 613 a.

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People v. Goodwin, 18 Johns. 187, 201; United States v. Gibert, 2 Sumner, 19, 45. And see The State v. Spear, 6 Misso. 644.

• Commonwealth v. Olds, 5 Litt. 137; McCauley v. The State, 26 Ala. 135. See Campbell v. The State, 11 Ga. 353...


Pruden. Northrup, 1 Root, 93; Hylliard v. Nickols, 2 Root, 176; Han


ings.1 There is, however, an apparent inclination of some courts to hold the doctrine somewhat more strictly in felonies, especially when punishable with death, than in misdemeanors.2


§ 656 a. In the early part of this volume we saw, that the same general rules of interpretation apply alike to statutes and to constitutions.3 We saw also, that statutes are to be liberally interpreted in favor of persons charged with crime.1 This latter principle enables defendants to avail themselves of provisions not reaching in exact words to their cases, if their cases fall fully within the reasons of the provisions. And, in this view, we cannot well see how the courts should decline to apply this constitutional guaranty in misde


§657. Thirdly. How it binds the Defendant and the Government severally. This provision of law was adopted for the benefit of defendants, who are therefore at liberty to waive their rights under it. The doctrine, that a man may waive a legal privilege, is familiar in every department of our jurisprudence. For example, when a statute directs in what county he shall be sued, he may still, if sued on a private demand in the wrong county, answer there to the action on its merits; and, by so answering, he relinquishes his opportunity to object. And, in like manner, a privilege secured by con

niball v. Spalding, 1 Root, 86; United States v. Halberstadt, Gilpin, 262;: Lawyer v. Smith, 1 Denio, 207.

1 Ante, § 43.

People v. Olcott, 2 Johns. Cas. 301; Commonwealth v. Cook, 6 S. & R 577; Williams v. Commonwealth, 2 Grat. 567, compared with Dye v. Commonwealth, 7 Grat. 662; United States v. Morris, 1 Curt. C. C. 23. And see post, § 668 a.

3 Ante, § 66 d.

* Ante, § 111, 138 a et seq.

5 Brown v. Webber, 6 Cush. 560.


[ 669 ]

stitutional guaranty may be waived.

Illustrations of this, in respect to the matter now in discussion, will be seen under a subsequent sub-title.2

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§ 658. But, without the consent of the party upon whom the jeopardy has attached, no step in the proceedings against him can be taken backward. If, through misdirection of the judge in matter of law, or mistake of the jury, or their refusal to obey the instructions of the court, or any other like cause, a verdict of acquittal is improperly rendered, it can never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted.3 This doctrine applies as well in misdemeanor as in felony. It does

1 Bishop Mar. & Div. § 783; ante, § 553; The State v. Gurney, 37 Maine, 156.

2 Post, § 672 et seq."


3 Rex v. Paed, 4 Bur. 2257; Rex v. Silverton, 1 Wils. 298; Anonymous, Lofft, 451; Rex v. Fenwick, 1 Sid. 153; Rex v. Jackson, 1 Lev. 124; Rex v. Mann, 4 M. & S. 337; Rex v. Brice, 1 Chit. 352; People v. Mather, 4 Wend. 229, 263, 266, in which case, as in one or two others, a query, shown in other cases to be without foundation, is raised, whether a new trial may not be granted the State, where the acquittal is through misdirection of the judge in matter of law; Slaughter v. The State, 6 Humph. 410; Commonwealth v. Cummings, 3 Cush. 212; The State v. Kittle, 2 Tyler, 471; The State v. Jones, 7 Ga. 422; The State v. Dark, 8 Blackf. 526; The State v. Johnson, 8 Blackf. 533; The State v. Davis, 4 Blackf. 345; The State v. Fields, Mart. & Yerg. 137; Esmon v. The State, 1 Swan, Tenn. 14; The State v. Taylor, 1 Hawks, 462; The State v. Martin, 3 Hawks, 381; The State v. Kanouse, Spencer, 115; The State v. Wright, 3 Brev. 421; Thé State v. Hand, 1 Eng. 169; The State v. Denton, 1 Eng. 259; The State v. Spear, 6 Misso. 644; Rex v. Jones, 8 Mod. 201, 208; Reg. v. Challicombe, 6 Jur. 481; Rex v. Cohen, 1 Stark. 516; Rex v. Sutton, 5 B. & Ad. 52, 2 Nev. & M. 57; Rex &. Wandsworth, 1 B. & Ald. 63, 2 Chit. 282; 'Anonymous, Lofft, 451; Rex v. Reynell, 6 East, 315, 2 Smith, 406; The State v. Riley, 2 Brev. 444; The State v. Burris, 3 Texas, 118; The State v. De Hart, 2 Halst. 172; The State v. Wright, 2 Const. 517; The State v. McKee, 1 Bailey, 651; The State v. Brown, 16 Conn. 54; The State v. Anderson, 3 Sm. & M. 751 The State v. Reynolds, 4 Hayw. 110.

Rex v. Davis, 12 Mod. 9; Rex v. Bennett, 1 Stra. 101; and cases cited in the last note.

not apply strictly in penal actions, civil in form; 1 yet new trials are not commonly granted to plaintiffs in such ac tions. But the law seems to be, that a new trial, may be given to the prosecutor in a criminal proceeding where a civil right is enforced. In an ordinary criminal case, however, even when the issue, which the prisoner tenders, is that of a former acquittal; and, without evidence, against the direction of the court, this issue is found by the jury in his favor; the verdict must stand. A fortiori can never a fresh indictment be sustained for the same offence after an acquittal on the merits.5 Neither can a defendant, who has been duly convicted, be prosecuted a second time. The doctrines of this section will be further unfolded under our subsequent subtitles.

II. When the Jeopardy Attaches to the Defendant.

§ 658 a. The foregoing views are not in every respect sufficiently minute to serve the practitioner in all his windings through the labyrinths of this question, as presented in cases actually occurring before the courts. The subject is inherent ly difficult and intricate, and the treatment of it is rendered still more difficult by the many conflicts of judicial opinion found in the reports. But as we pursue our inquiries we shall remember, that they relate to constitutional law, in the American sense; and that, though the courts may have sometimes wandered, the ever present power of the constitution has re

1 United States v. Halberstadt, Gilpin, 262..

2 Lawyer v. Smith, 1 Denio, 207; Steel v. Roach, 1 Bay, 63; Rex v. Bear, 2 Salk. 646 and note.


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Reg. v. Russell, 3 Ellis & B. 942, 23 Law J. N. s. M. C. 173, 18 Jur. 1022, 26 Eng. L. & Eq. 230.

Rex v. Lea, 2 Moody, 9.

The State v. Spear, 6 Misso. 644; Campbell v. The State, 9 Yerg. 333. United States v. Keen, 1 McLean, 429; The State v. Benham, 7 Conn. 414; Mount v. The State, 14 Ohio, 295; The State v. Norvell, 2 Yerg. 24.

mained over them, and still remains. Our guide, then, is the constitution; and the decisions occupy the subordinate place of giving light to what leads us, instead of leading us themselves.

§ 658 b. Therefore we find it necessary to begin this investigation with the inquiry, standing at the head of our present sub-title,- When does the jeopardy attach? If in a particular case it has attached, though for an instant only, and there is afterward such a lapse in the proceedings as requires a new jeopardy, in distinction from a continuation of the old jeopardy, to produce a conviction, the defendant has thereby obtained the right to demand his discharge; and neither can the proceedings be carried on against him further, nor new proceedings against him be instituted; because he cannot be brought into jeopardy twice.

§ 659. There is a sense in which a person is in jeopardy the moment he incurs legal guilt; since he is then liable to be indicted. Clearly, however, the constitutional guaranty refers not to the jeopardy created by the crime, which the defendant commits himself; but by the prosecution, which is carried on by another. And the mere commencing of the proceedings does not put him in jeopardy, while there is no jury, who alone can decide the question of guilt. The law is accordingly settled, that, after a man is arrested and discharged by the committing magistrate; or after the grand jury has refused to find an indictment against him; or after he is indicted and has even pleaded to the indictment, which is still pending; or after any other proceedings, pending or not,


1 Marston v. Jenness, 11 N. H. 156; Commonwealth v. Myers, 1 Va. Cas. 188, 248. See Commonwealth v. Sorrell, 1 Va. Cas. 253; Commonwealth v. Bailey, 1 Va. Cas. 258.

• Commonwealth v. Miller, 2 Ashm. 61.

* Commonwealth v. Dunham, Thacher Crim. Cas. 513; Commonwealth v. Drew, 3 Cush. 279; People v. Fisher, 14 Wend. 9. If the case is pending

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