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of this latter distinction it would seem, that, when the judge concurs with the jury in the conclusion of their inability to agree on a verdict, and therefore discharges them, the propriety of doing so under the particular circumstances cannot be reviewed; but, when the question of law arises, whether there was a jeopardy or not, this question may be reëxamined on appeal, or writ of error, or plea of former acquittal, aecording to the practice of the court,2 and the nature of the


§ 671 a. The discussion under our present sub-title is thus far imperfect, and apparently not fully in accordance with what was said in the outset. For, in spite of the cardinal proposition first laid down,3 that, since we are upon constitutional law, we must follow rather the lead of the constitution than of the decisions, our discussion, conducting us over the field of decision, has seemed sometimes to depart from the constitution. And though it is presumptuous in an author to express too confident opinions, contrary to an unbroken chain of decisions; still, in a matter like the present, where judges differ so widely, perhaps he may claim exemption from reproach, if he states his own conclusions. Let us look, therefore, at some of these conclusions; taking general views, not descending much into particulars.

! People v. Green, 13 Wend. 55; United States v. Perez, 9 Wheat, 579; People v. Olcott, 2 Johns. Cas. 301; Newton's case, 13 Q. B. 716, 13 Jur. 606, 18 Law J. N. s. M. C. 201; The State v. Brooks, 3 Humph. 70. But see Williams v. Commonwealth, 2 Grat. 567; The State v. Battle, 7 Ala. 259; Wright v. The State, 5 Ind. 290.

The State v. McKee, 1 Bailey, 651; United States v. Shoemaker, 2 McLean, 114; People v. Barrett, 2 Caines, 304; Ned v. The State, 7 Port. 187; Wright v. The State, 5 Ind. 290. And see The State v. Benham, 7 Conn. 414; Reg. v. Reid, 1 Eng. L. & Eq. 595; Mount v. The State, 14 Ohio, 295; The State v. Norvell, 2 Yerg. 24; Rex v. Wildey, 1 M. & S. 183; 2 Hale P. C. 243; Rex v. Bowman, 6 Car. & P. 101. Contra, United States v. Morris, 1 Curt. C. C. 23. See The State v. Waterhouse, Mart. & Yerg. 278.

'Ante, § 658 a.

§ 671 b. The prohibition of a second jeopardy implies, in the first place, that there has been such a jeopardy already as the machinery of government, in its ordinary workings, is able to bring upon a person committing crime. It implies, in the second place, that the individual was put in a situation to object to what was done against him by the government. Now, if, in any case, the machinery of the government proceeds no further than merely to obtain control of the person, not obtaining control of the appliances to enforce the punishment, it does not put him in jeopardy. But when it takes hold of both him and the appliances, it creates the jeopardy. If any thing short of both these things would answer, then a jeopardy might be produced without placing the defendant in a position to object to what is done; because he can object only at the moment when the thing comes to which the objection is to be made.

§ 671 c. The propositions of the last section seem vague as there stated; yet, vague though they seem, they lead practically to distinct conclusions. The bringing of the defendant into court, by arrest, is what we have termed the obtaining, by the governmental power, of the control of his person. The finding of the indictment, the impanelling of the jury, and the completion of the case in all other respects for trial, are the laying hold, by the governmental power, of the machinery. But if the machinery is in any respect imperfect, whether the imperfection is apparent or not, imperfect to the extent, that what it does is liable to be undone on application of the defendant, after his conviction, - then the question is the same as if the power had not put its hand at all on the machinery. The machinery is the court, consisting of judge, attending officers, and jury. Yet the power to govern the machinery is alone in the judge while the several parts are in each other's presence. When the jury have left the presence of the judge, then the jurors collectively have the power respecting what belongs to them; but an individual juror has not the power. Any thing coming in, from without the controlling power, to render impossible the case going to

a verdict, is to be deemed an original imperfection, either latent or patent, which prevents the jeopardy from ever attaching. But what the controlling power does, receives the opposite consideration.

§ 671 d. When the judge, or the collective jury retired to deliberate on their verdict, being the controlling power of the court, does any thing contrary to the rights of the defendant, the defendant's duty is, if the thing is done where he may. be present, to object instantly; failing to do which, he loses his objection altogether, as waiving the point. But suppose his objection is unheeded, or the thing is done in the juryroom where he cannot go, and in consequence of the error no verdict can be reached in the case, or a verdict is rendered improperly against him, then the jeopardy must be deemed to have attached; and, since he is not to be sentenced on any verdict rendered, he cannot be sentenced at all; neither can he be dealt with further on the same charge. The doctrine of this section, it must be added, is in some points widely separated from the authorities.

$671.e. Though the evidence is a thing outside of the power which controls the machinery, yet neither its character nor its absence affects the question of whether a verdict shall be reached in the case. Consequently, if any unexpected calamity cuts off for the moment the evidence on which the prosecutor relies, this circumstance does not show the absence of jeopardy; and if, without the evidence, the prisoner cannot be convicted then, he cannot be convicted ever, of the crime then charged against him. This proposition is plain, and it accords with the uniform current of decision; but the statement of it, in these terms, may serve to enlighten less plain points which may arise.

§ 671 f. These views, expressed in general language, indi

1 Ante, § 671 c.


cate the author's opinion on most questions concerning which judges differ. They are not meant to cover a second time the ground of the earlier parts of this sub-title. And if they are correct in principle, they show also, that the course of our courts, adopted apparently without consideration, of trying anew defendants wrongly convicted by reason of a misdirection against which they protested at the time, instead of suffering them to go free, is contrary to the constitutional rule under discussion. If, only on the waiving of their constitutional rights, they can have the error corrected, -in other words, if they can be permitted to take their due only on paying the price of surrendering what the constitution secures to them, in still other words, if, after they have struggled against wrong, and been borne down, they can be permitted to come up again, only on giving back what the constitution of the country gave them, in other words still, if, having opposed a conviction improperly ordered, while entitled to an acquittal, they can have the conviction set aside only on submitting to run their chance of being convicted under a different state of facts appearing, when either they will be unprepared for the trial, or the government will have evidence it had not before-if, in still other words, the wrong done the prisoner is to be set right only on his submitting to the chance of receiving a fresh wrong, surely this guaranty of the constitution is not worth the parchment on which it was written. It is no answer to this view to say, that the erroneous ruling took away the original jeopardy, since it was certain the court would correct it; because, if this course of reasoning were adopted, no court could do any thing which our constitutional rule would oppose. This matter is brought to the attention of the profession, less because of any belief in the author's mind that his suggestions will change the current of decision, than because it lay in his path, demanding notice.



III. The Defendant's Jeopardy as concerns his Waiver of


§ 672. No man can complain of that to which he consents. And on this principle, as we have already seen,1 a defendant may waive his rights under this constitutional provision; and may even obligate himself, for a consideration, not to set up the defence in a future proceeding in the case to which the obligation attaches. For his own good the court will refuse, under some circumstances, to allow him to make the waiver; or, if he makes it, will refuse to hold him to its consequences; though there is some apparent difference of judicial opinion on this point.2 Anciently, prisoners were denied counsel in their trials; and then the judges counselled them, to the extent of preventing their doing things prejudicial, except to plead guilty. After the practice was changed as to counsel, the courts decided, not without some differences of opinion, that, even in capital trials, defendants, acting by legal advice, under the supervision of the tribunals, might so consent to an arrangement manifestly for their benefit, as to be bound afterward by it.3 And thus far the better doctrine now goes; probably further.

§ 672 a. The courts, for example, will refuse to hear objections to the persons composing the grand jury, or to the manner in which it is impanelled, after the case has been tried by the petit jury; or, indeed, after proceedings earlier than the trial. And, as a general proposition, whatever is

1 Ante, § 657.

"In capital cases, I think the court is so far of counsel with the prisoner, that it should not suffer him to consent to any thing manifestly wrong, and to his own prejudice." Foster, 31.

3 Kinloch's case, 1 Foster, 16, 27, 31. And see The State v. Slack, 6 Ala. 676; Commonwealth v. Cook, 6 S. & R. 577.

The State v. Ward, 2 Hawks, 443; The State v. Martin, 2 Ired. 101; The State v. Lamon, Hawks, 175; People v. Griffin, 2 Barb. 427; The State v. Seaborn, 4 Dev. 305.

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