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§ 676. The waiving of constitutional right, implied in mak ing an application for a new trial, is not construed to extend beyond the exact matter concerning which the relief is sought. If therefore the verdict finds a prisoner guilty of part of the charge against him, and not guilty of another part; as, for example, guilty on one count of the indictment, and not guilty on another count; or, there being but one count, guilty of manslaughter, and not guilty of murder; 2 and a new trial is granted him, he cannot be convicted on the second trial of the matter of which he was acquitted on the first.

§ 677. Sometimes a verdict of guilty as to a part of the charge in the indictment is silent as to the residue; and the courts do not agree concerning the effect of this finding.3 There is authority for saying, that the verdict is then too incomplete to sustain any judgment; there is authority for the entry of acquittal of the part on which the jury were silent, at any rate for considering the verdict equivalent in its effect to an acquittal; there is authority for allowing the prosecuting officer to nol. pros. the part not responded to; and there is still other authority for disregarding such part altogether, and proceeding to judgment on the matter where the



1 Campbell v. The State, 9 Yerg. 333; The State v. Kittle, 2 Tyler, 471; Esmon v. The State, 1 Swan, Tenn. 14. And see The State v. Dark, 8 Blackf. 526.

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Slaughter v. The State, 6 Humph. 410.

3 See 1 Stark. Crim. Plead. 2d ed. 346–350.

The State v. Sutton, 4 Gill, 494. Contra, Brooks v. The State, 3 Humph 25; Stoltz v. People, 4 Seam. 168.

Kirk v. Commonwealth, 9 Leigh, 627; Weinzorpflin v. The State, 7 Blackf. 186; Brooks v. The State, 3 Humph. 25; Morris v. The State, 8 Sm. & M. 762; Chambers v. People, 4 Scam. 351; Stoltz v. People, 4 Scam. 168; Brennan v. People, 15 Ill. 511, 517. Contra, United States v. Keen, 1 McLean, 429. See also Jones v. The State, 13 Texas, 168; The State v. Smith, 5 Day, 175.


United States v. Keen, supra; Commonwealth v. Stedman, 12 Met.

voice of the jury is distinct.1 On principle, either of the last two methods appears to be the true one; while, of the two, perhaps the trimming off of the dead matter, by the govern mental prosecutor with his nol. pros., is the more orderly and neat. Likewise, on principle, if the defendant has a new trial after the imperfect finding and without the nol. pros., he seems to stand, in respect to those parts of the allegation on which the jury were silent, in the same position as if the verdict were too defective in form to sustain any judgment,? liable to be retried on the whole.3. But the authorities, the reader perceives, are not uniform to the latter effect: the greater number of cases seem to favor the extending of the new trial only to those parts of the indictment found expressly against the defendant.

IV. The Defendant's Jeopardy as concerns his Fraud.

§ 678. The common law doctrine is familiar, that fraud vitiates every transaction into which it enters. Still any person, to set aside the transaction on the ground of the fraud, must proceed according to established rules of law. Therefore on general principles, without resorting to the rule of criminal jurisprudence that a man shall not be twice put in jeopardy for the same offence, if proceedings in a civil suit, for instance, are fair and good up to the time of the hearing, the party beaten cannot, in any other case, have the judg ment held void as obtained by false testimony, or other fraud practised upon him at the trial. His only remedy is to apply for a rehearing, and within the time and according to the rules prescribed by law; for that will give him relief

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The State v. Coleman, 3 Ala. 14; Nabors v. The State, 6 Ala. 200; Swinney v. The State, 8 Sm. & M. 576; Weinzorpflin v. The State, 7 Blackf. 186.

2 Ante, § 673, 676.

3. The majority of the court so held, in The State v. Commissioners, Riley,



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in respect to every part of the transaction into which the fraud has entered. In criminal cases, there is no question, that, when fraud is practised at the trial by the prosecutor, producing a conviction, a new trial will be granted on the prayer of the defendant. And there is even direct English authority, and there are numerous judicial dicta, both English and American, that, if the defendant's fraud at the hearing brings about his acquittal, the prosecutor may have a new trial. This latter point is perhaps not beyond controversy; but upon principle it would seem, that, if the defendant's fraud was of such an extensive nature as necessarily to prevent a valid conviction, whatever the evidence at the prose cutor's command, there was no jeopardy, and so the new trial should be granted to the prosecutor; while, on the other hand, if it did not go so far, there was jeopardy. And, since the proceeding which worked the jeopardy was the act of the law, not of the defendant, the rule forbidding a man to rely on his own wrong would not estop his setting up this jeopardy. In other words, looking at this question as one of principle, if the fraud prevented the jeopardy from attaching, then the rule of law protecting a defendant from being put in jeopardy twice would not prevent the court from granting to the State a new trial, the same as new trials are granted to plaintiffs in civil causes. But if, notwithstanding the fraud, there was a legal danger of a conviction, then, as the defendant if convicted could not ask for a new trial on the ground of his own fraud, the jeopardy of the law attached, notwithstanding the fraud; and he should be protected from a second jeopardy.

1 Greene v. Greene, 2 Gray, 361, 4 Am. Law Register, 42; Homer v. Fish, 1 Pick. 435. And see the article in 4 Am. Law Register, 1.

2 Rex v. Furser, Say. 90. And it has been held in Connecticut, that in such cases a new trial will be granted the prosecutor on a penal statute. Pruden v. Northrup, 1 Root, 93; Hylliard v. Nickols, 2 Root, 176; Hannaball v. Spalding, 1 Root, 86.

Rex v. Davis, 12 Mod. 9; Rex v. Bear, 2 Salk. 646; The State v. Jones, 7 Ga. 422; The State v. Wright, 2 Const. 517; The State v. Brown, 16 Conn. 54; The State v. Davis, 4 Blackf. 345; 1 Chit. Crim. Law, 657.


§ 679. But sometimes a man, conscious of guilt, procures proceedings against himself, and suffers a slight punishment, thinking thereby to bar a prosecution carried on in good faith. In such a case, if the first proceeding is really managed by himself, either directly or through the agency of another, he is, while thus holding his fate in his own hand, in no jeopardy; the plaintiff State is no party in fact, but only such in name; the judge is imposed upon indeed, yet in point of law adjudicates nothing; "all is a mere puppet-show, and every wire moved by the defendant himself." The judgment therefore is a nullity, and is no bar to a real prosecution. It would seem, however, that here, if the legal penalty was an exact and certain one, and the person thus carrying on the case against himself had actually borne it in full, not merely in part, the State would have suffered nothing, and so the judgment would not be deemed in law fraudulent.3


1 Woodbury, J., in The State v. Little, 1 N. H. 257.

*The State v. Little, supra; Commonwealth v. Jackson, 2 Va. Cas. 501; The State v. Atkinson, 9 Humph. 677; The State v. Lowry, 1 Swan, Tenn. 34; Commonwealth v. Alderman, 4 Mass. 477; The State v. Colvin, 11 Humph. 599; The State v. Yarbrough, 1 Hawks, 78. And see 4 Am. Law Register, 1; Bishop Mar. & Div. § 707.

3 Hamilton v. Williams, 1 Tyler, 15; The State v. Little, 1 N. H. 257; Commonwealth v. Alderman, 4 Mass. 477; The State v. Atkinson, 9 Humph. 677. See Raynham e. Rounseville, 9 Pick. 44; Commonwealth v. Loud, 3 Met. 328; ante, § 664. In a North Carolina case, after an indictment for assault and battery had been found in the superior court, the defendant, knowing of the fact but not being arrested, procured himself to be indicted for the same offence in the county court, voluntarily submitting and paying the fine; and this proceeding was held to bar the earlier indictment. "Certainly," said Battle, J., "it is no fraud on the law for a man who has violated it to come forward and voluntarily submit to the judgment of a court having full jurisdiction of the offence." The State v. Casey, Busbee, 209. In Texas, however, under similar circumstances, where the proceeding pending a prior indictment was had before a justice of the peace, the court held that the pendency of the indictment took away the justice's jurisdiction, and so what was done before him was a nullity. Burdett v. The State, 9 Texas, 43.

§ 679 a. The doctrine of fraud in judicial proceedings, civil and criminal, is not well defined in our law generally; and, when it is found complicated with the constitutional rule discussed in this chapter, it presents peculiar difficulties. A single suggestion, added to the propositions of the last two sections, may be of use. When a proceeding is entirely fraudulent, having no sound part whatever, there is no collateral or direct effect to be given it; it is as though it had not been; only a party to the fraud is not permitted to rely on this imperfection. But practically most frauds relate only to some particular in the proceeding; not vitiating, therefore, the whole. And when a question of this nature comes before us, we are to inquire how broad and deep the fraud was, and in what way it must be taken advantage of. This suggestion points simply to the path of inquiry, which every investigator is to pursue for himself.

V. When the Offences are the same.

§ 680. The protection we are considering extends only to cases in which the second jeopardy is for the same offence as the first. If a man, therefore, has been either convicted or acquitted of one crime, he may still be prosecuted for another. But the two indictments are not always in the same words; and, when they are not, difficulties occur as to the identity of the offences. For the offences to be the same, it is not necessary that the two indictments should be in exact language alike; neither is proof outside the indict

1 Reg. v. Bird, 2 Eng. L. & Eq. 439, 2 Den. C. C. 94; McQuoid v. People, 3 Gilman, 76; Commonwealth v. Goodenough, Thacher Crim. Cas. 132; Hite v. The State, 9 Yerg. 357; The State v. Ainsworth, 11 Vt. 91; Hawkins v. The State, 1 Port. 475; Commonwealth v. Somerville, 1 Va. Cas. 164; Commonwealth v. Mott, 21 Pick. 492; Rex v. Phillips, 1 Jur. 427; post, § 692.

2 Hite v. The State, 9 Yerg. 357.

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