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authorized by statute, as in some States they are. land, however, the tribunals allow to the State a writ of error at common law, to reverse a judgment given on demurrer in favor of a defendant.2 The question is not free from difficulty; but probably some judges have refused the writ to the State, by reason of not distinguishing sufficiently between cases in which the constitutional provision forbids the rehearing of the matter at all, and cases in which the prosecuting power has the same inherent right to a rehearing as a plaintiff has in a civil suit.

§ 664 a. It must be borne in mind, that the constitutional provision under consideration is not the only impediment to the rehearing of criminal causes. It is indeed the only one not removable by legislation; but, when legislation has not interfered, and the matter stands on common law principles, there may be various other absolute bars to a further trial.

§ 665. A legislative provision for the rehearing of a criminal cause cannot be interpreted to violate the constitutional rule under consideration, whatever be the words in which the provision is expressed. When therefore the defendant has been once in jeopardy, the jeopardy cannot be repeated without his consent, whatever statute may exist on the subject. And so the writ of error, or the like, allowed to the State, can authorize the State to procure the reversal of erroneous proceedings and proceed anew, only in those cases in which the first proceeding did not create a legal jeopardy. For example, if,

monwealth v. Jefferson, 6 B. Monr. 313; The State v. Davis, 4 Blackf. 345; The State v. Heatherley, 4 Misso. 478.

The State v. Douglass, 1 Greene, Iowa, 550; The State v. Hicklin, 5 Pike, 190; The State v. Fields, Mart. & Yerg. 137; The State v. Norvell, 2 Yerg. 24; The State v. Dark, 8 Blackf. 526; Commonwealth v. Jefferson, 6 B. Monr. 313; Commonwealth v. Scott, 10 Grat. 749, 754. See Commonwealth v. Thompson, 13 B. Monr. 159.

The State v. Buchanan, 5 Har. & J. 317. See The State v. Graham, 1 Pike, 428; The State v. Haddock, 2 Hayw. 162.

without a trial, the court quashes a valid indictment, or gives the defendant judgment on demurrer, under the erroneous belief that it is invalid, a trial may be had after the prosecutor has procured, the reversal of this judgment; 1 because, as we have already seen, the prisoner is not in jeopardy until the jury is impanelled and sworn. And the same consequence follows where a judgment of conviction has been rendered on an invalid indictment.2 But where the indictment is sufficient, and the proceedings are regular, before a tribunal having jurisdiction, down to the time when the jeopardy attaches, there can be no second jeopardy allowed in favor of the State, on account of any lapse or error at a later stage.3 This doctrine should practically be considered in connection with what will be said under our next sub-title; else it may be misapplied.

§ 666. When a man is brought before a tribunal having no jurisdiction over the offence with which he is charged, or deriving its existence from an unconstitutional act of the legislature, or holding a term unauthorized by law, or for any other reason having no authority to try him, he is not in jeopardy, however far the tribunal proceeds,, In most and

1 Reg. v. Houston, 2 Crawf. & Dix C. C. 310.

2 Ante, § 663, 664.

3

Ante, § 658; The State v. Fields, Mart. & Yerg. 137; The State v. Hand, 1 Eng. 169; The State v. Denton, 1 Eng. 259; The State v. Dark, 8 Blackf. 526; The State v. Davis, 4 Blackf. 345.

The State v. Odell, 4 Blackf. 156; Commonwealth v. Hyde, Thacher Crim. Cas. 112; Commonwealth v. Peters, 12 Met. 387; Commonwealth v. Goddard, 18 Mass. 455, 457; The State v. Payne, 4 Misso. 376; The State v. McCory, 2 Blackf. 5; Marston v. Jenness, 11 N. H. 156; Commonwealth v. Myers, 1 Va. Cas. 188, 248,

Rector v. The State, 1 Eng. 187. See McGinnis v. The State, 9 Humph. 43.

Dunn v. The State, 2 Pike, 229; Rex v. Bowman, 6 Car. & P. 337. The State v. Atkinson, 9 Humph. 677; Commonwealth v. Alderman, 4 Mass. 477.

perhaps all of these circumstances, the final judgment, when pronounced, is not voidable, as mentioned in a previous sec tion, but void; so that his unreversed conviction 2 is no more a bar to another prosecution than his acquittal. But if the tribunal has authority, concurrent with another, or exclusive;ng whether it is an inferior one, as a justice's court, a courte martial, or the court of a municipal corporation, or whether it is a superior tribunal, a conviction or acquittal in it will be a bar to any subsequent proceedings in the same or any other judicatory.3

§667. The foregoing defects are termed by us defects of record. They are such also in their nature as may be known before the trial commences. That in fact they are not known to the prosecuting officer is owing either to accident or to his mistaking the law. That they are not objected to by the defendant is owing to the same in him, or to his preferring to let the matter pass, with the view of taking the advantage after verdict, in the event of conviction. But there are other defects, equally fatal; defects inherent in the case, though not properly of record; defects existing in the nature of things, and therefore certain; yet unknown until the evolutions of events bring them to light.

And if one of

* Commonwealth v. Hyde, Thacher Crim. Cas. 112; Commonwealth v. Goddard, 13 Mass. 455; The State v. Payne, 4 Misso. 376; The State McCory, 2 Blackf. 5; Rex v. Bowman, 6 Car. & P. 337. But see McGinnis v. The State, 9 Humph. 43.

3 Commonwealth v. Cunningham, 13 Mass. 245; The State v. McCory, 2 Blackf. 5; Stevens v. Fassett, 27 Maine, 266; The State v. Plunkett, 3, Harrison, 5; Commonwealth v. Miller, 5 Dana, 320; The State v. Simonds, 3. Misso. 414; Wilkes v. Dinsman, 7 How. U. S. 89, 123; The State v. Davis, 1 Southard, 311; Commonwealth v. Goddard, 13 Mass. 455. Concerning courts-martial, Attorney-General Cushing gave an opinion, that the military offence and the civil differ so as to allow of a prosecution in the military tri-, bunal, after the civil has prosecuted for the same act. Steiner's case, 6 Opin. Att. Gen. 413. And see post, § 691. See also as to courts-martial, Brown v. Wadsworth, 15 Vt. 170.

&

these defects is found to have lain hidden in the cause when it was opened to the jury, the proceeding, however far it formally progresses, will not bar future proceedings; because it produces, in law, no jeopardy to the defendant. Let us call to mind some of these latent defects, which severally prevent the jeopardy from attaching.

§ 667 a. In the first place, it is always certain in the nature of things how long a time will be required in the trial of a cause; while yet the time is ascertainable only as manifested in the progress of a trial. If therefore, before the

cause is finished by the bringing in of the verdict, the term of the court closes, this result shows that the prisoner was never in jeopardy; though he believed himself to be, and others believed with him. Consequently he may be tried again.1

§ 667 b. In the next place, sickness may come, unknown before it comes. And if, while the cause is on trial, it falls on the judge, or a juryman,3 or the prisoner, falls to inter

1 The State v. McLemour, 2 Hill, S. C. 680; The State v. Battle, 7 Ala. 259; Lore v. The State, 4 Ala. 173; Ned v. The State, 7 Port. 187; Wright v. The State, 5 Ind. 290; The State v. Moor, Walk. Missis. 134; Commonwealth v. Thompson, 1 Va. Cas. 319; The State v. Brooks, 3 Humph. 70; Powell v. The State, 19 Ala. 577. Contra, In re Spier, 1 Dev. 491. And see United States v. Shoemaker, 2 McLean, 114; Commonwealth v. Olds, 5 Litt. 137.

2

Nugent v. The State, 4 Stew. & P. 72.

Fletcher v. The State, 6 Humph. 249; Commonwealth v. Merrill, Thacher Crim. Cas. 1; The State v. Curtis, 5 Humph. 601; Rex v. Barrett, Jebb, 103; Rex v. Delany, Jebb, 106; Rex v. Edwards, 4 Taunt. 309, Russ. & Ry. 224, 3 Camp. 207; Rex v. Scalbert, 2 Leach, 4th ed. 620; Reg. v. Leary, 3 Crawf. & Dix C. C. 212; Reg. v. Beere, 2 Moody & R. 472; Hector v. The State, 2 Misso. 166; Commonwealth v. Fells, 9 Leigh, 613. The sickness must be such as cannot be removed by refreshments. Commonwealth v. Clue, 3 Rawle, 498.

* Rex v. Stevenson, 2 Leach, 4th ed. 546; Rex v. Streek, 2 Car. & P. 413; Rex v. Kell, 1 Crawf. & Dix C. C. 151; People v. Goodwin, 18 Johns. 187; The State v. McKee, 1 Bailey, 651; Foster, 34.

rupt the proceeding before final verdict rendered, this result shows, that no jeopardy existed in fact, though believed to exist; and the prisoner may be put to answer anew.

§ 668. The doctrines of the last two sections are plain and undisputed. But how they apply in cases where the jury, being unable to agree, are for this cause discharged by the court before the term closes, is a question of difficulty, upon which judicial opinion is divided. It appears that anciently in England, if the jury could not come to a verdict before the end of the term of the court, they were carted after the judges either into, or to the border of, the next adjoining county. In this country, no such practice has been followed; yet some of our tribunals have held, that the evidence of time alone could be received of their inability to agree, and that, therefore, if they were earlier discharged, on any other testimony whatever, the prisoner could not be tried again. In England however at present, and in the greater part, not all, of our American States, when a reasonable time has been given the jury, and they have in open court declared themselves unable to come to an agreement, and the judge is satisfied of the truth of the declaration,

3

'Rex v. Ledgingham, 1 Vent. 97; 3 Inst. 110; Co. Lit. 227; Foster, 31 et seq. See The State v. Hall, 4 Halst. 256, 261; United States v. Gibert, 2 Sumner, 19, 42; Reg. v. Leary, 3 Crawf. & Dix C. C. 212.

Ned v. The State, 7 Port. 187; Williams v. Commonwealth, 2 Grat. 567, compared with Dye v. Commonwealth, 7 Grat. 662, where it appears that the rule is applied only to felonies; Commonwealth v. Cook, 6 S. & R. 577 ; Mahala v. The State, 10 Yerg. 532.

3 Newton's case, 13 Q. B. 716, 13 Jur. 606, 18 Law J. N. s. M. C. 201, Archb. New Crim. Proced. 172. See Conway v. Reg. 7 Irish Law, 149, 13 Q. B. 735, note; Rex v. Shields, 28 Howell St. Tr. 619, 646, 647.

* Commonwealth v. Bowden, 9 Mass. 494; Commonwealth v. Purchase, 2 Pick. 521; The State v. Updike, 4 Harring. Del. 581; People v. Olcott, 2 Johns. Cas. 301; United States v. Perez, 9 Wheat. 579; The State v. McKee, 1 Bailey, 651; People v. Goodwin, 18 Johns. 187, 206; The State v. Woodruff, 2 Day, 504; Hurley v. The State, 6 Ohio, 399; People v. Green, 13 Wend. 55; The State v. Hall, 4 Halst. 256; Wright v. The State, 5 Ind. 290.