down to the time of the trial; he is still, for the same of fence, liable to a new indictment, to which what has been done is no bar. And, without prejudice to any such fresh prosecution, the attorney for the State may nol. pros., that is, discontinue, an indictment, at any time after it is found, previous to the moment when, the defendant having pleaded, that is, made answer, to it, a traverse jury is impanelled and sworn to try the cause. Then his jeopardy begins ; & and it begins only when the panel is full. Until full, the jeopardy is not perfect. seguindomong out all orgy as dut. I

bo§ 659 a. 'In other words, the jury is necessary to make the tribunal complete as concerns the defendant; and, until it is complete, he is not in jeopardy, whatever other preliminary proceedings may have been had.b tuteland Mud tan

R

§ 660. But when the jury, being full, is sworn and added

In another tribunal having competent jurisdiction, the first tribunal is entitled to proceed with it. Even a plea in abatement, under such circumstances, has been held to lie in the second tribunal. The State v. Yarbrough, 1 Hawks, 78. See also Burdett v. The State, 9 Texas, 48; The State v. Casey, Busbee, 209. i used je to ob

And see Brown v. The State, 5 Eng. 607; Commonwealth v. Thompson, 3 Litt. 284; The State v. Fley, 2 Brev. 338, 348.

*Commonwealth v. Tuck, 20 Pick. 356, 364; Clarke v. The State, 23 Missis. 261; The State v. McKee, 1 Bailey, 651; The State v. Blackwell, 9 Ala. 79; Lindsay u. Commonwealth, 2 Va. Cas. 345, Wortham v. Commonwealth, 5 Rand. 669; Commonwealth V. Wheeler, 2 Mass. 172; United States v. Stowell, 2 Curt. C. C. 170; The State v. 256; The State v. Thompson, 3 Hawks, 6134ate. Thornton, 13 Ired. And see Rex v. Roper, 1 Crawf. & Dix C. C. 185; Rex v. Wade, 1 Moody, 86. The cases of Newsom v. The State, 2 Kelly, 60, Reynolds v. The State, 3 Kelly, 53, and Durham The State, 9 Ga. 306, were decided under a Georgia statute.

1:3 Commonwealth v. Cook, 6 S. & R. 577; The State v. McKee, 1 Bailey, 651; Weinzorpflin v. The State, 7 Blackf. 186; Cobia v. The State, 16 Ala. 781, 784; In re Spier, 1 Dev. 491; Wright v. The State, 5 Ind. 290; McFadden v Commonwealth, 11 Harris, Pa. 12.· ́ ́} ,,!,*1(

351.

The State Burket, 2 Const. N. s. 155; People v. 'Damon, 13 Wend.

1

to the other branch of the court, and all the preliminary things of record are ready for the trial, the prisoner has reached the jeopardy from the repetition of which our constitutional rule protects him. During the trial, the prosecuting officer is not authorized to enter a nol. pros. ; or, if he enters it, even with the consent of the judge; or, if he withdraws a juryman, and so stops the hearing, the legal effect is an acquittal.2 The defendant is thereupon entitled to have a verdict of not guilty returned by the jury; but, if this is not done, he may still claim his discharge, and he is not to be brought again in jeopardy for the same offence. After a conviction, and before judgment, the officer may indeed nol. pros. a part1 or even the whole 5 of the indictment; but there is doubtless no question, that, in such a case, the prisoner cannot be prosecuted for the same matter anew.

6

§ 661. While there are probably no direct decisions against any of the points stated in the last three sections; yet, contrary to what is there set down, some judges have expressed the opinion, that the jeopardy begins only after verdict rendered. In their view, the meaning of the rule is, as has been

1 The State v. Kreps, 8 Ala. 951; The State v. I. S. S., 1 Tyler, 178. See The State v. Davis, 4 Blackf. 345; Commonwealth v. Goodenough, Thacher Crim. Cas. 132.

* And see cases cited ante, § 659.

United States v. Shoemaker, 2 McLean, 114; Mount v. The State, 14 Ohio, 295, 305; Reynolds v. The State, 3 Kelly, 53; Harker v. The State, 8 Blackf. 540; People v. Barrett, 2 Caines, 304; Commonwealth v. Tuck, 20 Pick. 356; Reg. v. Oulaghan, Jebb, 270; Wright v. The State, 5 Ind. 290; Ward v. The State, 1 Humph. 253. And see Grable v. The State, 2 Greene, Iowa, 559.

* Anonymous, 31 Maine, 592; Commonwealth v. Briggs, 7 Pick. 177; Commonwealth v. Tuck, 20 Pick. 356; The State v. Roe, 12 Vt. 93; The State v. Whittier, 21 Maine, 341; The State v. Bruce, 24 Maine, 71; Commonwealth v. Jenks, 1 Gray, 490; The State v. Burke, 38 Maine, 574. See Flanagan v. The State, 19 Ala. 546.

The State v. Fleming, 7 Humph. 152.

6 But see Weinzorpflin v. The State, 7 Blackf. 186.

said, "that no man shall be twice tried for the same offence." 1 But the adjudications, even of these judges, hardly sustain this proposition; and the plain difference between the danger, or jeopardy, of a thing, and the thing itself, indicates the error on which their observations are founded. Other considerations likewise lead in the same direction.

§ 661 a. The following point will show us, that, as a question of principle, the jeopardy must begin at an earlier period in the cause than the rendition of the verdict. If it began only then, our constitutional rule would furnish no practical protection whatever to prisoners, provided the judge or the legislature should determine not to sustain it in its spirit; and, though we may suppose neither would so determine, yet no instrument is to be construed in a way to render it powerless in any hands. Suppose, then, the legislature should direct, what the court might as well do without the direction, that, whenever the evidence should appear to the judge to be insufficient to convict, he should discharge the jury without taking a verdict, and hold the defendant to answer before another jury, no protection against any number of trials and any amount of harassment would be afforded to prisoners, if the jeopardy of the constitution begins only with a verdict rendered.

§ 662. Not only must the tribunal be made complete by the impanelling of the jury in the way already explained, in order to produce the legal jeopardy of which we are treating; but all other preliminary things of record necessary to

1 People v. Goodwin, 18 Johns. 187, 202, 206; Commonwealth v. Olds, 5 Litt. 137; The State v. Moor, Walker, Missis. 134; United States v. Gibert, 2 Sumner, 19, 60; United States v. Perez, 9 Wheat. 579.

2 "There is a wide difference," said Duncan, J., "between a verdict given and the jeopardy of a verdict. Hazard, peril, danger, jeopardy of a verdict, cannot mean a verdict given." Commonwealth v. Cook, 6 S. & R. 577,

596.

sustain the verdict of guilty, if rendered, must be done. Let us look at some of these preliminary things of record.

§ 663. When the indictment is so defective in form, that, supposing the defendant found guilty by the jury, he would be entitled to have any judgment which could be entered up against him reversed, he is not in jeopardy; and, if acquitted, is liable to be tried on a new and valid indictment.1 In such a case, however, if the jury convict the defendant, and the court enters judgment on the verdict of guilty, he will be protected while the judgment remains unreversed; 2 not because he has been in jeopardy, but because of a general and very important principle of the law, that an erroneous final judgment, rendered by a competent tribunal having jurisdiction over the subject-matter, is voidable only, and, while it stands, is of the same effect as a valid one. The judgment, to produce this last-mentioned consequence, must, let us repeat, be final; a mere verdict finding the defendant guilty will not do; and therefore, in localities where the benefit of clergy is allowed, such verdict and his discharge on prayer of clergy, where the indictment is insufficient, furnishes no protection against a fresh prosecution.5. Therefore it plainly

1 2 Hale, P. C. 248; People v. Barrett, 1 Johns. 66; Vaux's case, 4 Co. 44 a, 3 Inst. 214; Reg. v. Richmond, 1 Car. & K. 240; The State v. Ray, Rice, 1; Rex v. Wildey, 1 M. & S. 183; Commonwealth v. Loud, 3 Met. 328; Commonwealth v. Keith, 8 Met. 531; The State v. Williams, 5 Md. 82; Pritchett v. The State, 2 Sneed, 285. And see Burgess v. Sugg, 2 Stew. & P. 341; Commonwealth v. Chichester, 1 Va. Cas. 312. By the present New York statutes, if a party is tried and acquitted upon the merits, it will be a bar. Burns v. People, 1 Parker, 182, 184. When a prisoner demurs to an invalid indictment, and is discharged on judgment being rendered in his favor, a second and valid proceeding may be instituted against him. Cochrane v. The State, 6 Md. 400, 406.

* Vaux's case, 4 Co. 44 a; 2 Hale P. C. 248.

And see ante, § 620, 646.

Ante, § 623, 624.

52 Hawk. P. C. Curw. Ed. p. 528, § 15.

follows, though we have probably no direct adjudications on the point, that, in our practice, if on the verdict coming in the prosecuting officer discovers a defect in the indictment, he may, instead of moving for sentence, enter a nol. pros., and indict anew. And in a recent case, the Tennessee court, without passing upon this exact point, held, "that a nol. pros. entered with the assent of the court, even after the jury is impanelled and proof heard, where the indictment is bad, does not operate as an acquittal, as there was no legal, jeopardy."2

T

§ 664. Even when a final judgment has been rendered against a defendant, there is no constitutional objection to permitting the prosecutor to procure its reversal, if erroneous, and bring forward a fresh indictment;3 though manifestly he will not usually desire to do so. If the defendant has actually suffered the punishment of the law, a different principle will indicate, that future proceedings cannot be carried on against him. Such proceedings would resemble a civil suit to recover a debt already paid. In England, writs of error, the practical object of which is generally to bring the matter under the review of a higher tribunal, seem to be allowable to the crown in criminal cases; but the courts of most of our States refuse them, and also refuse the right of appeal, to the State or Commonwealth, except where such proceedings are expressly

1 Ante, § 659, 660.

2 Walton v. The State, 3 Sneed, 687.

3

Reg. v. Houston, 2 Crawf. & Dix C. C. 310; People v. Corning, 2 Comst. 9.

See Commonwealth v. Loud, 3 Met. 328.

5 Reg. v. Chadwick, 11 Q. B. 205; Reg. v. Houston, 2 Crawf. & Dix C. C. 310; Reg. v. Millis, 10 Cl. & F. 534.

The State v. Jones, 7 Ga. 422; Commonwealth v. Cummings, 3 Cush. 212; The State v. Daugherty, 5 Texas, 1; People v. Corning, 2 Comst. 9; United States v. More, 3 Cranch, 159; Commonwealth v. Harrison, 2 Va. Cas. 202; The State v. Reynolds, 4 Hayw. 110; People v. Royal, 1 Scam. 557; People v. Dill, 1 Scam. 257; Martin v. People, 13 Ill. 341; The State v. Jones, 1 Murph. 257; Commonwealth v. Sanford, 5 Litt. 289; The State v. Solomons, 6 Yerg. 360. And see The State v. Spear, 6 Misso. 644; Com