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CHAP. XLVII.] pleadable in abatement is waived by the plea in bar of not guilty. So if a defendant suffers himself to go to trial without having received a copy of the indictment, even where the law expressly directs such copy to be furnished him, he cannot afterward take the objection that it was not furnished.2 Likewise, as a proposition to which there are exceptions not necessary here to be mentioned, if the prisoner consents to the separation of the jury before verdict returned, he cannot object to the verdict on the ground of the separation. And when, while the petit jury is being impanelled, he knows of a cause of challenge existing against one of the jurors, or the whole of them, but declines to interfere then, he cannot afterward bring forward the matter. In like manner, if the defendant permits illegal testimony to be given to the jury, as shown by his making no objection to it, he cannot afterward claim any privilege on account of its admission.* There are other illustrations, but these will suffice to explain the general doctrine.

1 McQuillen v. The State, 8 Sm. & M. 587.

2 Smith v. The State, 8 Ohio, 294, 296; Lisle v. The State, 6 Misso. 426; The State v. Johnson, Walk. Missis. 392; Loper v. The State, 3 How. Missis. 429. So where, under a statute, the defendant is entitled to have the names of witnesses noted on the indictment, if he suffers the case to be tried without making the objection, he is too late afterward. Ray v. The State, 1 Greene, Iowa, 316.

3 The State v. Mix, 15 Misso. 153; Wesley v. The State, 11 Humph. 502. Lisle v. The State, 6 Misso. 426; The State v. Underwood, 6 Ired. 96; The State v. Duncan, 6 Ired. 98; Brown v. The State, 7 Eng. 623; Hallock v. Franklin, 2 Met. 558; Barlow v. The State, 2 Blackf. 114; Glover v. Woolsey, Dudley, Ga. 85; Billis v. The State, 2 McCord, 12; Anonymous, cited 1 Pick. 41; Guykowskie v. People, 1 Scam. 476.

5 Bishop v. The State, 9 Ga. 121.

See Commonwealth v. Battis, 1 Mass. 95; The State v. Cross, 34 Maine, 594; Commonwealth v. Andrews, 3 Mass. 126; People v. Scates, 3 Scam, 351; Armstrong v. The State, Minor, 160; Cravens v. Gant, 2 T. B. Monr. 117, 4 T. B. Monr. 126; People v. Rathbun, 21 Wend. 509, 542; Hazen v. Commonwealth, 11 Harris, Pa. 355; Brooks v. Davis, 17 Pick. 148; Brooks v. Daniels, 22 Pick. 498; Gracie v. Palmer, 8 Wheat. 699; Prine v. Commonwealth, 6 Harris, Pa. 103.

§ 673. Upon this doctrine of consent, depend many things coming under the constitutional provision we are considering. Thus, if, during the trial, the jury is discharged with the prisoner's concurrence, his privilege to object is waived, and he may be tried anew. And when a verdict is so incomplete that no judgment can be entered upon it, the law infers the consent of both parties to it; because either party might have had it perfected when rendered; and therefore the prisoner may be put to answer before another jury.3 If the verdict will sustain a judgment, the judgment must be given, instead of a new trial being ordered. On the like principle, where the prisoner absents himself from court at the time he should be present to receive the verdict, the judge may order the case to stand for another jury; what has been done amounting only to a mis-trial. And finally, whenever a verdict, valid in form or not, has been rendered on an indict

1

Elijah v. The State, 1 Humph. 102; Williams v. Commonwealth, 2 Grat. 567; Dye v. Commonwealth, 7 Grat. 662; Ferrars's case, T. Raym. 84; Kinlock's case, Foster, 16, 27, 1 Wils. 157; Rex v. Stokes, 6 Car. & P. 151; The State v. McKee, 1 Bailey, 651, 654; Spencer v. The State, 15 Ga. 562.. And see Commonwealth v. Nix, 11 Leigh, 636. Contra, Rex v. Perkins, Holt, 403, where Holt, C. J., said: "It was the opinion of all the judges of England, upon debate between them, that, in all capital cases, a juror cannot be withdrawn, though the parties consent to it; that, in criminal cases not capital, a juror may be withdrawn, if both parties consent, but not otherwise." Rex v. Kell, 1 Crawf. & Dix C. C. 151.

2 Sargent v. The State, 11 Ohio, 472; The State v. Underwood, 2 Ala.

744.

Wright v. The State, 5 Ind. 527; Reg. v. Woodfall, 5 Bur. 2661; Rex v. Hayes, 2 Ld. Raym. 1518; Rex v. Simons, Say. 34, 36; Wilson v. The State, 20 Ohio, 26; Gibson v. Commonwealth, 2 Va. Cas. 111; Commonwealth v. Smith, 2 Va. Cas. 327; The State v. Sutton, 4 Gill, 494; Webber v. The State, 10 Misso. 4; The State v. Valentine, 6 Yerg. 533; The State v. Town, Wright, 75; Campbell.v. Reg. 11 Q. B. 799; The State v. Spurgin, 1 McCord, 252; Marshall v. Commonwealth, 5 Grat. 663; Commonwealth v. Hatton, 3 Grat. 623. And see United States v. Bird, 2 Brev. 85. 4 Page v. Commonwealth, 9 Leigh, 683; Commonwealth v. Fischblatt, 4 Met. 354; The State v. Arrington, 3 Murph. 571. See Morman v. The State, 24 Missis. 54.

The State v. Battle, 7 Ala. 259; The State v. Hughes, 2 Ala. 102.

ment good or bad, and the defendant moves in arrest of judgment, or applies to the court to vacate a judgment already entered, for any cause, as for many causes he may, he will be presumed to waive any objection to being put a second time in jeopardy; and so he may ordinarily be tried anew.1 When the objection to the verdict rests on some misdirection given by the judge at the trial, if the defendant took the point at the time, and it was overruled, a correct view of our consti- . tutional guaranty seems to indicate, as already mentioned,2 that he should be discharged altogether. Unfortunately, however, the practice in a large class of cases has been otherwise,

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§ 674. When the indictment is good, and the court, erroneously supposing it not good, arrests judgment on the defendant's application, here, in those States in which the prosecutor may have this judgment of arrest reversed for the error, he cannot maintain a new indictment; because, notwithstanding what has been done, the prisoner is still in jeopardy under the old one, which may practically be revived on the reversal of the old judgment. But in localities where the erroneous judgment of arrest cannot be afterward called in question, the prisoner's jeopardy has ceased, at his own request, and for his own benefit, and so he may be proceeded against anew.4

Reg. v. Reid, 1 Eng. L. & Eq. 595; Campbell v. Reg. 11 Q. B. 799 ; Munroe v. The State, 5 Ga. 85; Sutcliffe v. The State, 18 Ohio, 469; Reg. v. Drury, 3 Car. & K. 193, 18 Law J, N. s. M. C. 189; Sellers v. The State, 1 Gilman, 183; Hines v. The State, 8 Humph. 597; Lane v. People, 5 Gilmer, 305, 308; Allen v. Commonwealth, 2 Leigh, 727; The State v. Hughes, 2 Ala. 102; The State v. Thompson, R. M. Charl. 80; The State v. Battle, 7 Ala. 259; The State v. Abram, 4 Ala. 272; Clark v. The State, 4 Humph. 254; The State v. Phil, 1 Stew. 31; Cobia v. The State, 16 Ala. 781; People v. McKay, 18 Johns. 212; Epes's case, 5 Grat. 676.

2 Ante, § 671 f.

The State v. Norvell, 2 Yerg. 24.

People v. Casborus, 13 Johns. 351; Gerard v. People, 3 Scam. 362.

§ 675. The English courts, though not bound by constitutional rule like ours, have from the earliest times been accustomed, in cases of felony, not of misdemeanor, to recommend the prisoner to a pardon; always granted, as of course; whenever it appeared that the judge presiding at the trial had committed an error to his prejudice, in matter of law. And until recently the doctrine was supposed to prevail in England, that a new trial would never be granted to a defendant convicted of felony; the recommendation of pardon being in all cases of felony given instead.1 A recent decision, however, settles the doctrine for England, that there may be a new trial, instead of a pardon, even on a conviction for felony, when evidence has been improperly admitted to the jury.2 The English rule in misdemeanor has always been to grant a new trial to the defendant under such circumstances, and not to recommend a pardon;3 while, we have seen, that the prosecutor, even in cases of misdemeanor, can never have this privilege given him. The view has already been presented in this chapter, that, on principle, the constitutional provision we are considering should entitle the defendants to be discharged by the courts without further proceedings against them, especially in cases of felony, and probably in cases of

1 Reg. v. Frost, 2 Moody, 140, 171; United States v. Gibert, 2 Sumner, 19, 44-46; United States v. Keen, 1 McLean, 429, 432; Rex v. Mawbey, 6 T. R. 619, 638; Archb. New Crim. Proced. 177.

Reg. v. Scaife, 2 Den. C. C. 281, 17 Q. B. 238; Archb. Crim. Plead. & Ev. 13th London Ed. 154.

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3 Rex v. Currill, Lofft, 156; Rex v. Simmons, 1 Wils. 329; Rex v. Smith, 2 Show. 165; Rex v. Read, 1 Lev. 9; Rex v. Bear, 2 Salk. 646; Rex v. Mawbey, 6 T. R. 619, 638; Rex v. Simons, Say. 34; Rex v. Tremaine, 7, D. & R. 684, 5 B. & C. 254. But see Read v. Dawson, 1 Sid. 49. “A court of oyer and terminer or general gaol delivery, however, or the court of quarter-sessions, have no power to grant a new trial; at least such is generally understood to be the case." Archb. New Crim. Proced. 177. And see Rex v. Fowler, 4 B. & Ald. 273.

* Ante, § 658.

6 Ante, § 671 f.

misdemeanor also.1 At one tine, some American judges were of opinion, that even a new trial cannot with us be granted to defendants in cases of felony for misdirection by the court; yet the doctrine is now settled in our jurisprudence to the contrary, new trials being allowed alike in treason, felony, and misdemeanor.2 The defendant waives by implication his constitutional privilege, in asking for the new trial. And though our view of principle would entitle him to a discharge, instead of this remedy, whenever the misdirection was a plain violation of legal rights, and he made the objection at the time; still, even on principle, there are cases in which a discretionary power might be exercised in favor of defendants, where they could not strictly claim rights; and here, of course, the remedy should be a new trial, instead of a discharge.1 What is sufficient cause for a new trial is inatter for consideration in our work on Criminal Procedure.

§ 675 a. The doctrine of waiving this constitutional right does not rest, as a matter of reason, merely on the consideration, that a man may relinquish what has been given him for his benefit; it rests equally also on the necessity of conducting causes in a way to secure justice to defendants. If they could never waive any thing, the law, on the other hand, must pursue them with exact aim, since it could make no arrangements to vary its iron course.

1 Ante, § 656, 656 a.

2 United States v. Conner, 3 McLean, 573; United States v. Keen, 1 McLean, 429; Grayson v. Commonwealth, 6 Grat. 712; Weinzorpflin v. The State, 7 Blackf. 186; United States v. Fries, 3 Dall. 515; The State v. Prescott, 7 N. H. 287; The State v. Slack, 6 Ala. 676; Lane v. People, 5 Gilman, 305, 308; The State v. Wood, 1 Const. N. s. 29; The State v. Sims, Dudley, Ga. 213; Allen v. Commonwealth, 2 Leigh, 727; The State v. Larrumbo, Harper, 183; The State v. Merrill, 2 Dev. 269; Commonwealth v. Green, 17 Mass. 515; Commonwealth v. Roby, 12 Pick. 496. United States v. Halberstadt, Gilpin, 262; People v. Morrison, 1 Parker, 625; United States v. Macomb, 5 McLean, 286. Contra, United States v. Gibert, 2 Sumner, 19; People v. Comstock, 8 Wend. 549.

3 Ante, § 671 ƒ, 673.

* Commonwealth v. Green, 17 Mass. 515.

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