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that in its application one may be twice put in jeopardy for the same offense.8

11

[362] D. Offenses and Proceedings in Which Former Jeopardy Is a Defense." Jeopardy, in its constitutional or common-law sense, has a strict application to criminal prosecutions only.10 Although in strictness the constitutional provisions apply only to felonies, the courts generally have been guided by the spirit rather than the letter of the law, and have applied the doctrine to all indictable offenses including misdemeanors;12 but in some jurisdictions the doctrine has been held to have a narrower scope.13 The doctrine does not apply to proceedings to deport aliens,1 to prosecutions for

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Proceedings in rem to forfeit a thing. The doctrine does not apply to a proceeding in rem to forfeit a thing because of its status, use, or location, without regard to the guilt or innocence of any particular person.18

Actions for the recovery of statutory penalties have been held not to be within the constitutional guaranty. Hence where the law, besides making an act a crime, permits the recovery of a penalty for its commission, the trial of the offender for the crime is no bar to an action for the penalty,1o and

8. Chaplin v. U. S., 8 App. (D. C.) | vision that "no person shall for the
302.
same offence, be twice put in jeop-
ardy of life or limb" applies only
to cases of capital felony. McCreary
v. Com., 29 Pa. 323, 325; Com. v.
Reese, 22 Pa. Co. 411.

9. Former acquittal as defense to prosecution for adultery see Adultery § 14.

10. U. S.-Ladaux V. Berkshire, 185 Fed. 971; Sire v. Berkshire, 185 Fed. 967.

D. C.-Chapman v. U. S., 8 App. 302, 315.

Minn. State v. Shevlin-Carpenter Co., 102 Minn. 470, 113 NW 634, 114 NW 738, 99 Minn. 158, 108 NW 935, 9 AnnCas 634.

Nebr.-Mitchell v. State, 12 Nebr. 538, 11 NW 848.

Okl.-Rupert v. State, 9 Okl. Cr. 226, 131 P 713, 45 LRANS 60.

Wis-State V. Little, 164 Wis. 367, 159 NW 747; State v. Lewis, 164 Wis. 363, 159 NW 746; Brown V. Swineford, 44 Wis. 282, 28 AmR 582. See also Peo. v. Meakim, 133 N. Y. 214, 30 NE 828, 8 N. Y. Cr. 404 [aff 61 Hun 327, 15 NYS 917, 8 N. Y. Cr. 308].

[a] The violation of an ordinance, which the court may punish by imprisonment aside from pecuniary penalty or forfeiture, in proceedings criminal in nature, although civil in form, is an offense for which a person cannot twice be put in jeopardy. Noland v. Peo., 33 Colo. 322, 80 P 887; St. Paul v. Stamm, 106 Minn. 81, 118 NW 154; Portland v. Erickson, 39 Or. 1, 62 P 753.

[b] Acquittal by a legislative body of charges of bribery brought against a member has been held no bar to the criminal prosecution of such member. Peo. v. Stilwell, 81 Misc. 456, 142 NYS 628.

[c] Proceedings to annul a physiclan's license for the commission of abortion did not put him in jeopardy for the second time for the same charge on which he had been acquitted in the municipal court. State v. Little, 164 Wis. 367, 159 NW 747; State v. Lewis, 164 Wis. 363, 159 NW

746.

11. Ex p. Lange, 18 Wall. (U. S.) 163, 21 L. ed. 872; U. S. v. Gibert, 23 F. Cas. No. 15,204, 2 Sumn. 19; Brink v. State, 18 Tex. A. 344, 51 AmR 317.

12. U. S.-Ex p. Lange, 18 Wall. 163, 21 L. ed. 872; Berkowitz v. U. S., 93 Fed. 452, 35 CCA 379.

Ky. Com. v. Standard Oil Co., 120 Ky. 724, 87 SW 1090, 27 KyL 1073; Williams v. Com., 78 Ky 93.

40.

La.-State v. Cheevers, 7 La. Ann.

Minn.-St. Paul V. Stamm, 106 Minn. 81, 118 NW 154.

Philippine.-U. S. V. Parcon, 6 Philippine 632.

Tex-Brink v. State, 18 Tex. A. 344. 51 AmR 317.

Eng.-Wemyss v. Hopkins, L. R. 10 Q. B. 378.

See also Rose v. State, 9 Lea (Tenn.) 388.

13. See cases infra this note. [a] In an early case in the federal courts it was held that the doctrine only applies to capital felonies. U. S. v. Gilbert, 25 F. Cas. No. 15,204, 2 Sumn. 19.

[b] In Pennsylvania also it has been held that the constitutional pro

[c] In Arkansas it has been held that the doctrine of former jeopardy does not apply to misdemeanors punishable by fine alone. Warwick v. State, 47 Ark. 568, 2 SW 335.

[d] In Missouri also this would seem to be the rule. State v. Spear, 6 Mo. 644. 14. Sire v. Berkshire, 185 Fed. 967. 15. U. S.-U. S. v. Colo., 216 Fed. 654. Conn. Middlebrook V. State, 43 Conn. 257, 21 AmR 650.

D. C.-Chapman v. U. S., 8 App. 302.

Iowa.-Jones v. Mould, 151 Iowa 599, 132 NW 45; Gibson v. Hutchinson, 148 Iowa 139, 126 NW 790, Ann Cas1912B 1007.

N. Y.-Hanbury v. Benedict, App. Div. 662, 146 NYS 44.

160

16. State v. Vankirk, 27 Ind. 121. 17. Peo. v. Meakim, 133 N. Y. 214, 30 NE 828 [aff 61 Hun 327, 15 NYS 917, 8 N. Y. Cr. 308].

495

18. Origet v. U. S., 125 U. S. 240, 8 SCt 846, 31 L. ed. 743; The Palmyra, 12 Wheat. (U. S.) 1, 6 L. ed. 531; U. S. v. Olsen, 57 Fed. 579; U. S. v. Three Copper Stills, 47 Fed. (holding that a conviction for illegally removing distilled spirits is not a bar to subsequent proceedings for their forfeiture); Sanders v. State, 2 Iowa 230; State v. Barrels of Liquor, 47 N. H. 369; Stout v. State, 36 Okl. 744, 130 P 553, 45 LRANS 884, AnnCas1916E 858. Compare U. S. v. One Distillery, 43 Fed. 846 (holding that the government cannot be permitted to maintain a civil action for the forfeiture of the property of a person for the acts or transactions for which it previously has prosecuted, convicted, and punished him).

[a] That property owned by a corporation has been forfeited in a proceeding by the United States for a violation of the internal revenue laws is not a bar to the prosecution of a stockholder personally for the same violation, although he is the sole stockholder; nor would it be a bar if the property was in his own name. Wood v. U. S., 204 Fed. 55, 122 CCA 369.

19. U. S.-Stone v. U. S., 167 U. S. 178, 17 SCt 778, 42 L. ed. 127 [aff 64 Fed. 667, 12 CCA 451]; U. S. v. Three Copper Stills, 47 Fed. 495; Matter of Leszynsky, 16 Blatchf. 9, 15 F. Cas. No. 8.279; U. S. v. Halberstadt, 26 F. Cas. No. 15,276, Gilp. 262.

93.

Conn.-Pruden v. Northrup, 1 Root

Ind. Latshaw v. State, 156 Ind. 194, 59 NE 471; Durham v. State, 117 Ind. 477, 19 NE 327; Indiana Cent. R. Co. v. Potts, 7 Ind. 681.

Iowa.-State V. Meek, 112 Iowa 338, 84 NW 3, 84 AmSR 342, 51 LRA 414.

Kan.-State v. Roach, 83 Kan. 606, 112 P 150, 31 LRANS 670, 21 AnnCas 1182 [cit Cyc].

Ky.-Com. v. Prall, 146 Ky. 109, 142 SW 202 [den reh 144 Ky. 577, 139 SW 798].

Mich.-Micks v. Mason, 145 Mich. 212, 108 NW 707, 11 LRANS 653, 9 AnnCas 291.

Minn.-State v. Shevlin-Carpenter Co., 102 Minn. 470, 113 NW 634, 114 NW 738, 99 Minn. 158, 108 NW 935, 9 AnnCas 634.

Nebr.-Mitchell v. State, 12 Nebr. 538, 11 NW 848; Peo. v. Stevens, 13 Wend. 341.

N. Y.-Peo. v. Meakim, 133 N. Y. 214, 30 NE 828, 8 N. Y. Cr. 404; Peo. v. Snyder, 90 App. Div. 422, 86 NYS 415.

Okl.-Stout v. State, 36 Okl. 744, 130 P 553, 45 LRANS 884, AnnCas 1916E 858.

Tenn. Memphis V. Smythe, 104 Tenn. 702, 58 SW 215.

Wis.-Brown v. Swineford, 44 Wis. 282, 28 AmR 582.

Eng. Calcraft v. Gibbs, 5 T. R. 19, 101 Reprint 11; Wilson v. Rastall, 4 T. R. 753, 100 Reprint 1283.

"It is undoubtedly competent for the legislature to subject any particular offence, both to a penalty and a criminal prosecution; it is not pun-: ishing the same offence twice. They are but parts of one punishment;. they both constitute the punishment which the law inflicts upon the offence. That they are enforced in different modes of proceeding, and at different times, does not affect the principle. It might as well be contended that a man was punished twice, when he was both fined and imprisoned, which he may be in most misdemeanors." Peo. v. Stevens, 13 Wend. (N. Y.) 341, 342 [quot Stout v. State, 36 Okl. 744, 761, 130 P 553, 45 LRANS 884].

[a] In Indiana (1) it has been held that the constitutional guaranty against a second jeopardy does not prohibit the legislature from declaring an act a crime and prescribing a penalty therefor, and at the same time fixing or limiting the civil liability for the same act (State v. Stevens, 103 Ind. 55); (2) but that the legislature is prohibited by such constitutional provision from authorizing, in addition to the penalty for the crime, the recovery in a civil action of unrestricted exemplary damages (State V. Stevens, supra; Schafer v. Smith, 63 Ind. 226; Koerner v. Oberly, 56 Ind. 284. 26 AmR 34; Taber v. Hutson, 5 Ind. 322, 61 AmD 96).

[b] In Massachusetts it has been held that the pendency of a qui tam action will abate an indictment for the same cause, and this, although plaintiff in the qui tam action is nonsuited after the filing of the plea in abatement to the indictment. But the rule is otherwise where the qui tam action is collusively brought. Com. v. Churchill, 5 Mass. 174.

[c] Misdemeanor, civil suit, and injunction.-A statute which makes an act a misdemeanor and also authorizes a civil suit against a person violating its provisions, and an injunction to restrain such violation, is not in contravention of the constitutional provision against putting

vice versa.2 20 One reason for this, even where the parties are the same, is the difference in the degree of proof ncessary to make a case in the two instances; in the criminal proceeding the state can secure judgment only on proof which excludes all reasonable doubt, while in the civil action its case is made by a preponderance of the evidence.21 But to this rule there is one notable exception; where the civil action is to secure a forfeiture, which would have been part of the penalty to be imposed in the criminal proceeding, and is between the same parties, the previous acquittal is a bar.22

The recovery of exemplary or punitive damages is sometimes held not to be in conflict with the provision against a person being twice put in jeopardy, a person twice in jeopardy for the same offense, and this although in case of 2 violation of an injunction under the civil remedy part of the act the court may punish defendant for contempt for disobeying the order of injunction. State v. Roby, 142 Ind. 168, 41 NE 145, 51 AmSR 174, 33 LRA 213.

20. Levy v. State, 6 Ind. 281.

21. State v. Meek, 112 Iowa 338, 84 NW 3, 84 AmSR 342, 51 LRA 414. 22. Coffey v. U. S., 116 U. S. 436, 6 SCt 437, 29 L. ed. 684; U. S. v. Shapleigh, 54 Fed. 126, 4 CCA 237; U. S. v. McKee, 26 F. Cas. No. 15,688, 4 Dill. 128; State v. Meek, 112 Iowa 338, 84 NW 3, 84 AmSR 342, 51 LRA 414.

23. U. S.-Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57, 30 SCt 663, 54 L. ed. 930 [aff 102 Minn. 470, 113 NW 634].

Ind.-Latshaw v. State, 156 Ind. 194, 59 NE 471; State v. Roby, 142 Ind. 168, 41 NE 145, 51 AmSR 174, 33 LRA 213; State v. Stevens, 103 Ind. 55, 2 NE 214, 53 AmR 482.

Iowa. Hauser v. Griffith, 102 Iowa 215, 71 NW 223.

Ky.-Chiles v. Drake, 2 Metc. 146, 74 AmD 406.

Minn.-State v. Shevlin-Carpenter Co., 99 Minn. 158, 108 NW 935, 9 Ann Cas 634.

Wis.-Brown v. Swineford, 44 Wis. 282, 28 AmR 582.

See Damages [13 Cyc 118].

24. Koerner v. Oberly, 56 Ind. 284, 26 AmR 34 (compare later cases supra note 23); Austin v. Wilson, 4 Cush. (Mass.) 273. 50 AmD 766; Fay v. Parker, 53 N H. 342, 16 AmR 270.

25. U. S.-Ex p. Glenn. 111 Fed. 257 [rev on other grounds 189 U. S. 506, 23 SCt 851, 47 L. ed. 921]; U. S.

V.

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118 Cal. 23, 50 P 15; Peo. v. Roberts, 114 Cal. 67, 45 P 1016; Ex p. Fenton, 77 Cal. 183, 19 P 267; Peo. v. Higgins, 59 Cal. 357; Ex p. Clarke, 54 Cal. 412; Peo. v. Cage, 48 Cal. 323, 17 AmR 436; Peo. v. Webb, 38 Cal. 467.

D. C.-Nordlinger v. U. S., 24 App. 406, 70 LRA 227.

Fla.-Allen v. State, 52 Fla. 1, 41 S 593, 120 AmSR 188, 10 AnnCas 1085.

Ga.-Bell v. State, 103 Ga. 397, 30 SE 294, 68 AmSR 102; Franklin v. State, 85 Ga. 570, 11 SE 876; Daniels v. State, 78 Ga. 98, 6 AmSR 238; Jackson v. State, 76 Ga. 551; Nolan v. State, 55 Ga. 521, 21 AmR 281; Reynolds v. State, 3 Ga. 53; Newsom v. State, 2 Ga. 60.

Hawaii.-Reg. v. Poor, 9 Hawaii

295.

Ill. O'Donnell v. Peo., 224 Ill. 218, 79 NE 639, 8 AnnCas 123.

Ind.-Gillespie v. State, 168 Ind. 298, 80 NE 829; Shideler v. State, 129 Ind. 523, 28 NE 537, 29 NE 36, 28 AmSR 206, 16 LRA 225; Boswell v. State, 111 Ind. 47, 11 NE 788; Sanders v. State, 85 Ind. 318, 44 AmR 29; Halloran v. State, 80 Ind. 586; State v. Nelson, 26 Ind. 366; Joy v. State, 14 Ind. 139; Morgan v. State, 13 Ind, 215; Haase v. State, 8 Ind. A. 488, 36 NE 54.

Iowa.-State v. Fields, 106 Iowa 406, 76 NW 802; State v. Smith, 88 Iowa 178, 55 NW 198; State v. Tatman, 59 Iowa 471, 13 NW 632; State v. Redman, 17 Iowa 329; State v. Callendine, 8 Iowa 288.

Ky. Thomas v. Com., 150 Ky. 374, 150 SW 376; Huff v. Com., 42 SW 907, 19 KyL 1064; Gaskins v. Com., 97 Ky. 494, 30 SW 1017, 17 KyL 352; Com. v. Arnold, 83 Ky. 1, 4 AmSR 114, 6 KyL 181; Williams v. Com., 78 Ky. 93; O'Brian v. Com., Bush 333. 15 AmR 715 [overr O'Brian v. Com., 6 Bush 563, and Com. v. Olds, 5 Litt. 137, and in effect Wilson v. Com., 3 Bush 105]; (where it was held that jeopardy did not attach until after verdict); Tye V. Com., 3 KyL 59, 11 Ky. Op. 206.

Van Vliet, 23 Fed. 35; U. S. v. Shoemaker, 27 F. Cas. No. 16,279, 29 McLean 114.

Ala.-Ex p. Spivey, 175 Ala. 43. 45, 57 S 491 [cit Cyc]; Savell v. State, 150 Ala. 97, 43 S 201; State V. Vaughan, 121 Ala. 41, 25 S 727; Scott v. State, 110 Ala. 48, 20 S 468; Hayes v. State, 107 Ala. 1, 18 S 172; Jackson v. State, 102 Ala. 76, 15 S 351; Foster v. State, 88 Ala. 182, 7 S 185; Lyman v. State, 47 Ala. 686; Bell v. State, 44 Ala. 393; Grogan v. State, 44 Ala. 9; State v. Kreps, 8 Ala. 951. But see State v. Abram, 4 Ala. 272 (where a conviction was reversed on the ground that the special court which tried the case permitted a justice who was a member of the court to withdraw after the trial had commenced, and it was held that defendant could be tried again).

Ark. Crossland v. State, 77 Ark. 537, 92 SW 776; Burnett v. State, 76 Ark. 295, 88 SW 956. 113 AmSR 94; Harp v. State. 59 Ark. 113, 26 SW 714; State v. Ward, 48 Ark. 36, 2 SW 191, 3 AmSR 213; Whitmore v. State, 43 Ark. 271; Williams v. State, 42 Ark. 35; McKenzie v. State, 26 Ark. 334; State v. Cheek, 25 Ark. 206; Atkins v. State, 16 Ark. 568.

Cal-Patterson v. Conlan, 123 Cal. 453, 56 P 105; Peo. V. Ammerman,

La.-State v. Duvall, 135 La. 710, 65 S 904, LRA1916E 1264; State v. Pointdexter, 117 La. 380. 41 S 688; State v. Brown, 110 La. 591, 34 S 698; State v. Robinson, 46 La. Ann. 769, 15 S 146; State v. Paterno, 43 La. Ann. 514, 9 S 442; State v. Walters, 16 La. Ann. 400.

Mass.-Com. v. Hart, 149 Mass. 7, 20 NE 310; Com. v. Tuck, 20 Pick. 356.

Mich.-Paul v. Benzie Cir. Judge, 163 Mich. 543, 128 NW 739; Peo. v. Taylor, 117 Mich. 583, 76 NW 158. Minn.-State v. Sommers, 60 Minn. 90, 61 NW 907.

Mo.-State v. McWilliams, 267 Mo. 437, 184 SW 96, 99 [cit Cyc]; State v. Buente, 256 Mo. 227, 165 SW 340, AnnCas1915D 879; State v. Keating, 223 Mo. 86, 122 SW 699; State v. Webster. 206 Mo. 558, 105 SW 705; State v. Tayor, 171 Mo. 465, 71 SW 1005; State v. Manning. 168 Mo. 418, 68 SW 341; State v. Wiseback, 139 Mo.

214, 40 SW 946; State v. Snyder, 98 Mo. 555, 12 SW 369; State v. Williams, 117 Mo. A. 564, 91 SW 151; Ex p. Snyder, 29 Mo. A. 256.

Mont.-State v. Gaimos, 53 Mont. 118, 162 P 596, 598 [cit Cyc].

Nebr. Steinkuhler V. State, 77 Nebr. 331, 109 NW 395; Murphy v. State, 25 Nebr. 807, 41 NW 792.

Nev.-Ex p. Maxwell, 11 Nev. 428. N. M.-U. S. v. Aurandt, 15 N. M. 292, 302, 107 P 1064, 27 LRANS 1181 [cit Cyc].

N. Y.-Peo. v. Warden City Prison, 202 N. Y. 138, 95 NE 729 [aff 139 App. Div. 488, 124 NYS 341]; Peo. v. Hayes, 166 App. Div. 507, 151 NYS 1075 [aff 87 Misc. 595, 150 NYS 24, and aff 215 N. Y. 172, 109 NE 77].

N. C.-State v. Ephraim, 19 N. C. 162; In re Spier, 12 N. C. 491.

Oh.-Mount v. State, 14 Oh. 295, 45 AmD 542.

Okl.-Schreiber v. Clapp, 13 Okl. 215, 74 P 316; In re McClaskey, 2 Okl. 568, 37 P 854; Loyd v. State, 6 Okl. Cr. 76, 116 P 959; Caples v. State, 3 Okl. Cr. 72, 104 P 493, 26 LRANS 1033.

Or.-Ex p. Tice, 32 Or. 179, 49 P 1038; State v. Reinhart, 26 Or. 466, 38 P 822.

Pa.-Alexander v. Com., 105 Pa. 1; Hester v. Com., 85 Pa. 139; McFadden V. Com., 23 Pa. 12, 62 AmD 30S; Com. v. Cook, 6 Serg. & R. 577, 9 AmD 465; Com. v. Schench, 8 Kulp 487.

24

Porto Rico.-U. S. v. Fernandez, 1 Porto Rico Fed. 453; Peo. v. Pagan, 23 Porto Rico 770, 772 [cit Cycl. Tenn.-State v. Norvell, 2 Yerg. 24, AmD 458; State v. Connor, 5 Coldw. 311. Tex.-Hipple v. State, (Cr.) 191 SW 1150; Johnson v. State, 73 Tex. Cr. 133, 164 SW 833; Shoemaker v. State, 58 Tex. Cr. 518, 126 SW 887; Ex p. Davis, 48 Tex. Cr. 644, 89 SW 978, 122 AmSR 775; Hall v. State, (Cr.) 86 SW 765; Yerger v. State, (Cr.) 41 SW 621; Anderson v. State, 24 Tex. A. 705, 7 SW 40; Pibano v. State, 20 Tex. A. 139, 54 AmR 511; Powell v. State, 17 Tex. A. 345 [overr Taylor v. State, 35 Tex. 97; Moseley v. State, 33 Tex. 671].

Utah-State v. Hows, 1 Utah 168, 87 P 163.

Vt.-State v. Whipple, 57 Vt. 637. Va.-Dulin v. Lillard, 91 Va. 718, 20 SE 821; Day v. Com., 23 Gratt. (64) Va.) 915.

Wash.-State v. Herold, 68 Wash. 654. 123 P 1076, 40 LRANS 1213; State v. Kinghorn, 56 Wash. 131, 105 P 234, 27 LRANS 136; State v. Hubbell, 18 Wash. 482, 51 P 1039.

Wis. Schultz v. State, 135 Wis. 644, 655, 114 NW 505, 116 NW 259. 571 [cit Cyc]; McDonald v. State, 79 Wis. 651. 48 NW 863, 24 AmR 740; State v. Parish, 43 Wis. 395.

[a] Proceeding held not to constitute a jeopardy.-Where a warrant was issued and read to defendant. but she was not taken into custody, did not give bond for her appearance, and did not appear in court, but a judgment to pay a fine was en

does not attach until a valid verdict, either of acquittal or conviction, has been rendered.26

Proceedings before grand jury. The submission of an indictment to the grand jury and the examination of witnesses before them do not amount to a putting in jeopardy.27 Nor is a return of ignoramus by the grand jury a bar to a subsequent indictment for the same offense.28

The pendency of an indictment, information, or complaint does not constitute jeopardy.29

[§ 364] F. Elements of Former Jeopardy-1. In General. A defendant in a criminal prosecution is in lega jeopardy when he has been placed upon trial under the following conditions: (1) Upon a valid indictment or information;30 ;30 (2) -before a court of competent jurisdiction;31 (3) after he has

been arraigned;32 (4) after he has pleaded to the indictment or information;33 and (5) when a competent jury have been impaneled and sworn.3

34

[§ 365] 2. Valid Proceeding-a. In General. To entitle a defendant to the plea of former jeopardy, the proceedings must have been valid.35

[366] b. Fraudulent or Collusive Prosecution. A verdict of acquittal procured by a defendant by fraud and collusion is a nullity and does not put him in jeopardy; and consequently it is no bar to a second trial for the same offense.36 Similarly a conviction of a criminal offense, procured fraudulently or by collusion of the offender, for the purpose of protecting himself from further prosecution and adequate punishment, is no bar to a subsequent prosecution for the same offense, 37 either on the

tered against her as by confession, | 436, 73 S 259; State v. Ruffin, 117 La. upon a plea of guilty entered by the 357, 41 S 647. marshal, it was held that she had not been placed in jeopardy. Ballowe v. Com., 44 SW 646, 19 KyL 1867.

[b] In the Philippines defendant is not in jeopardy until an investigation of the charges actually has been commenced by the calling of a witness. U. S. v. Yam Tung Way, 21 Philippine 67; U. S. v. Ballentine, 4 Philippine 672.

26. U. S. v. Gibert, 25 F. Cas. No. 15,204, 2 Sumn. 19; U. S. v. Haskell, 26 F. Cas. No. 15,321, 4 Wash. C. C. 402; State v. Elden, 41 Me. 165; Saco v. Wentworth, 37 Me. 165, 58 AmD 786; Anderson v. State, 86 Md. 479, 38 A 937; Hoffman v. State, 20 Md. 425; Ford v. State, 12 Md. 514.

Mass.-Com. v. Brown, 167 Mass. 144, 45 NE 1.

Mo.-State v. McWilliams, 267 Mo. 437, 184 SW 96; State v. Vinso, 171 Mo. 576, 71 SW 1034; State v. Goddard, 162 Mo. 198, 62 SW 697. Nebr.-Roby v. State, 61 Nebr. 218, 85 NW 61.

N. M.-Terr. v. West, 14 N. M. 546, 99 P 343.

N. Y.-Peo. v. Rosenthal, 197 N. Y. 394, 90 NE 991, 46 LRANS 31 [aff 134 App. Div. 907 mem, 118 NYS 1132 mem, and aff 226 U. S. 260, 33 SCt 27, 57 L. ed. 212].

Tex.-Bailey v. State, 11 Tex. A. 140; January v. State, 66 Tex. Cr. 302, 146 SW 555; Perkins v. State, 65 Tex. Cr. 311, 144 SW 241.

Vt.-State v. Lindsay, 86 Vt. 201, 84 A 612.

Va. Stuart v. Com., 28 Gratt. (69 Va.) 950.

See infra § 376. See infra § 370.

[a] In Mississippi (1) Const. (1890) § 22, expressly provides that, before a person shall be considered to have been once in jeopardy, so as to bar another prosecution, there must be "an actual acquittal or con- [a] Only after a trial and a conviction on the merits." State v. Ken-viction or an acquittal on one of sevnedy. 96 Miss. 624, 626, 50 S 978; eral indictments against accused is Roberts v. State, 72 Miss. 728, 731, had, can the question be raised as to 18 S 481 (where the court, in speak- whether defendant can be tried on ing of this section, said: "The last another of the indictments. Terr. v. clause of this section changes, fun- Fullerton, 16 Hawaii 526. damentally, the old rule, and wisely 30. puts an end to the unmeritorious escape of persons charged with crime, who had been only technically, not really, once tried. It was put into the constitution in the interest of due and proper administration of the criminal law, is too plain for construction, means exactly what it says"). (2) Previous to this provision of the constitution the law was otherwise. Helm v. State, 66 Miss. 537, 6 S 322; Teat v. State, 53 Miss. 439, 24 AmR 708. But see State v. Moor, 1 Miss. 134, 12 AmD 541, (holding that jeopardy does not attach until after verdict).

[b] New Jersey and South Carolina-Under the constitutions of these states, a second trial is not interdicted unless the first resulted in an acquittal. Smith v. State, 41 N. J. L. 598; State v. Wyse, 33 S. C. 582, 12 SE 556; State v. Briggs, 27 S. C. 80, 2 SE 854; State v. Shirer, 20 S. C. 392. See also State v. Spurgin, 12 S. C. L..252. But see State V. McKee, 17 S. C. L. 651, 655, 21 AmD 499 (where the court said that one is in jeopardy where he "is put upon his trial, upon a valid indictment, for a capital offence").

27. Post v. U. S., 161 U. S. 583, 16 SCt 611, 40 L. ed. 816; Peo. v. Cummings, 123 Cal. 269, 55 P 898; State v. Whipple, 57 Vt. 637.

28. Com. v. Miller, 2 Ashm. (Pa.) 61; and other cases supra note 27. 29. Ga.-Irwin v. State, 117 Ga. 706. 45 SE 48; Hurst v. State, 11 Ga. A. 754, 76 SE 78.

Ind. Haase v. State, 8 Ind. A. 488, 36 NE 54.

Kan.-State v. Curtis, 29 Kan. 384. Ky. Hobbs v. Com., 156 Ky. 847, 162 SW 104; Madisonville, etc., V. Com., 140 Ky. 255, 130 SW 1084.

La-State v. McGarrity, 140 La.

31.

32.

See infra § 381.

33.

See infra § 382.

34. 35.

See infra § 385.

May v. State, 110 Ark. 432, 162 SW 43; State v. Heard, 49 La. Ann. 375, 21 S 632; Com. v. Roby, 12 Pick. (Mass.) 496; Peo. v. Cuatt, 70 Misc. 453, 126 NYS 1114.

[a] The fact that a trial was continued into Sunday morning does not prevent a second trial for the same offense. Peo. v. Luhrs, 79 Hun 415, 29 NYS 789, 9 N. Y. Cr. 267.

36. Ark.-State v. Ketchum, 113 Ark. 68, 167 SW 73; May v. State, 110 Ark. 432, 435, 162 SW 43 [cit Cycl; State v. Caldwell, 70 Ark. 74, 66 SW 150.

Conn.-State v. Lee, 65 Conn. 265, 30 A 1110. 48 AmSR 202, 27 LRA 498; State v. Reed, 26 Conn. 202; State v. Brown, 16 Conn. 54.

Ga. State v. Jones, 7 Ga. 422. Ind. Brackney v. State, 182 Ind. 343, 106 NE 532; State v. Davis, 4 Blackf. 245.

Ky.-McDermott v. C., 100 SW 830, 30 KyL 1227; Carrington V. Com., 78 Ky. 83.

Miss.-Price V. State, 104 Miss. 288, 61 S 314.

Pa.-Com. v. Pickett, 10 Kulp 68. N. C.-State v. Swepson, 79 N. C. 632 (where, however, Rodman, J., said that the precedents for this doctrine apply only to misdemeanors, and do not apply to capital offenses, and perhaps not to felonies).

S. C.-State v. Wright, 7 S. C. L. 517.

Eng.-Rex v. Davis, 12 Mod. 8, 88 Reprint 1129; Rex v. Bear, 2 Salk. 646, 91 Reprint 547; Rex v. Furser, Say. 90, 96 Reprint 813.

[al Where a wife has been induced by her husband's fraudulent

promises to maintain and to live with her to abandon a prosecution for desertion, he cannot rely on such prosecution as a bar to a subsequent one. Com. v. Pickett, 10 Kulp (Pa.) 68.

[b] Facts held insufficient to show collusion.-State v. Cale, 150 N. C. 805, 63 SE 958, 134 AmSR 957.

37. Ala.-Thomas V. State, 114 Ala. 31, 21 S 784; Toney v. State, (A.) 72 S 508.

Ark.-May v. State, 110 Ark. 432, 435, 162 SW 43 [cit Cyc]; Richards v. State, 108 Ark. 87, 157 SW 141, AnnCas1915B 231; Floyd v. State, 80 Ark. 94, 96 SW 125; Caldwell v. State, 69 Ark. 322, 63 SW 59, 70 Ark. 74, 66 SW 150; Bradley v. State, 32 Ark. 722.

Colo.-De Bord v. Peo., 27 Colo. 377, 61 P 599, 83 AmSR 89.

Ill.-Bulson v. Peo., 31 Ill. 409. Ind.-Peters v. Koepke, 156 Ind. 35, 59 NE 33; Shideler v. State, 129 Ind. 523, 28 NE 537, 29 NE 36, 28 AmSR 206, 16 LRA 225; Halloran v. State, 80 Ind. 586; Watkins v. State, 68 Ind. 427, 31 AmR 273; De Haven v. State, 2 Ind. A. 376, 28 NE 562.

Iowa.-State v. Green, 16 Iowa 239. Kan.-State v. Goetz, 65 Kan. 125, 69 P 187; State v. Smith, 57 Kan. 673, 47 P 541.

Mass.-Com. v. Dascom, 111 Mass. 404; Com. v. Churchill, 5 Mass. 174; Com. v. Alderman, 4 Mass. 477.

Minn.-State v. Simpson, 28 Minn. 66, 9 NW 78, 41 AmR 269.

Mo.-State v. Cole, 48 Mo. 70. N. H.-State v. Little, 1 N. H. 257. 'N. Y.-Peo. v. Cuatt, 70 Misc. 453, 459, 126 NYS 1114 [quot Cyc].

N. C.-State v. Dockery, 171 N. C. 828, 89 SE 36; State v. Moore, 136 N. C. 581, 585, 48 SE 573 [cit Cyc]; State v. Swepson, 79 N. C. 632. But see State v. Casey, 44 N. C. 209 (holding that, where an indictment was found in the superior court against defendant, and pending the same, after his knowledge thereof, and before his arrest, he procured himself to be indicted for the same offense in the county court, and there voluntarily submitted and was fined, the conviction in the county court was a good defense to the indictment in the superior court). See also State v. Cale, 150 N. C. 805, 63 SE 958, 134 AmSR 957 (where it was held that there was no evidence of collusion); State v. Roberts, 98 N. C. 756, 3 SE 682 (quære).

Tenn.-State v. Lowry, 1 Swan 34; State v. Atkinson, 9 Humphr. 677.

Tex.-Taff v. State, 69 Tex. Cr. 528. 155 SW 214; Stepp v. State, (Cr.) 77 SW 787; Watson v. State, 5 Tex. A. 271; Warriner v. State, 3 Tex. A. 104, 30 AmR 124.

Vt.-State v. Wakefield, 60 Vt. 618. 15 A 181; Hamilton v. Williams, 1 Tyler 15.

Va.-Com. v. Jackson, 2 Va. Cas. (4 Va.) 501.

Wis.-McFarland v. State, 68 Wis. 400, 32 NW 226, 60 AmR 867.

Que. In re Cotton, 15 Que. K. B. 7. "It can not be admitted, for a mo

of

ground that the conviction is void because of the fraud practiced,38 or that the state is not in fact in any sense a party to it, and therefore not bound by it.39 Where the prosecution was thus controlled and managed by accused, he has never been in jeopardy; and the proceeding being void the state may attack it collaterally.40 Thus a former conviction is no bar to an indictment for an assault, if it was procured fraudulently by defendant for the purpose avoiding the effect of a complaint by the person assaulted.41 But the rule is otherwise where the penalty prescribed for the offense is an exact and certain one and defendant has borne it in full.42 And it has been held that, where the state is represented throughout by its sworn officer-the prosecuting attorney-a conviction is not void because the prosecutor was corrupted during the pendency of the proceeding, and while unreversed it will bar another prosecution for the same offense.43

A defendant must have been a party to the fraud, and a conviction secured fraudulently by the state's officer cannot be avoided by the state, where defendant was not a party to the fraud.**

Fraudulent procurement of discharge on insufficient bail. Where a person who is accused of having committed a criminal offense has, by collusion and contrivance of the witnesses, the complainant and a justice of the peace, been arrested and discharged on insufficient bail, he may again be ar

rested by a warrant issued by another justice of the peace, and may be required to give bail in a larger amount, for the same offense.*

47

45

[367] c. Void or Abandoned Warrant. A void warrant of arrest,* 46 or one upon which no proceedings are taken, does not put accused in jeopardy, and is not a bar to a subsequent prosecution by indictment.

[368] d. Void or Defective Verdict. The fact that the verdict and sentence are defective does not entitle defendant to his discharge as having been once in jeopardy, but simply constitutes reversible error.* 48 A verdict may be corrected or amended as well in a criminal as in a civil case, and its recommittal does not put defendant twice in jeopardy.49

Discharge or separation of jury after void verdict. The reception by the court of a verdict which is void, so that no sentence can be imposed thereunder, followed by the discharge of the jury, does not operate as an acquittal, and accused, upon the verdict being set aside or judgment being arrested, may be tried again for the same crime.50 This is on the ground either that defendant, who might have had the verdict perfected when rendered, is considered as consenting to it and as waiving any objections to being again put upon trial,51 or that in such case an actual jeopardy does not exist.52 But where, after rendering an illegal verdict, the jury

ment, that the constitution or stat- 16 LRA 225. See also State v. Lit-
utes contemplate such a proceeding
as that now relied on as a bar to this
indictment; that a party, knowing
himself guilty of a misdemeanor,
should become his own prosecutor,
select his own judge, without notice
to the State, or any officer authorized
to prosecute in its behalf, confessing
his guilty, submitting to judgment,
and escape prosecution in the ap-
pointed mode, in proceedings in form
and effect adversary, in which the
State has the opportunity of being
heard, and of vindicating its laws.'
Drake v. State, 68 Ala. 510, 512.
38.

Shideler v. State, 129 Ind. 523, 28 NE 537, 29 NE 36, 28 AmSR 206, 16 LRA 225; Peo. v. Cuatt, 70 Misc. 453, 126 NYS 1114. And see cases supra note 37.

39. Shideler v. State, 129 Ind. 523, 28 NE 537, 29 NE 36, 28 AmSR 206, 16 LRA 225.

40. Halloran v. State, 80 Ind. 586; State v. Moore, 136 N. C. 581, 585, 48 SE 573 [cit Cyc].

41. Colo.-De Bord V. Peo., 27 Colo. 377, 61 P 599, 83 AmSR 89.

Ind.-Peters v. Koepke, 156 Ind. 35, 59 NE 33; Watkins v. State, 68 Ind. 427, 34 AmR 273.

Mass.-Com. v. Dascom, 111 Mass.

404.

Minn. State v. Simpson, 28 Minn. 66. 9 NW 78, 41 AmR 269.

N. Y.-Peo. v. Cuatt, 70 Misc. 453, 126 NYS 1114.

N. C.-State v. Moore, 136 N. C. 581, 48 SE 573. 42. Watkins v. State, 68 Ind. 427, 34 AmR 273 (holding, however, that the legal penalty for an assault and battery is not an exact and certain one); Cherry v. State, 103 Miss. 225, 60 S 138; Hamilton v. Williams, 1 Tyler (Vt.) 15: McFarland v. State, 68 Wis. 400, 32 NW 226, 69 AmR 867. Compare State v. Wakefield, 60 Vt. 618, 15 A 181 (holding that a former conviction for intoxication, rendered by a justice of the peace against one on his own complaint is not a bar to a prosecution previously instituted by the state's attorney for the same offense, although the fine is determined by the statute).

43. Shideler v. State, 129 Ind. 523, .28 NE 537, 29 NE 36, 28 AmSR 206,

tle, 1 N. H. 257 (where the court sug-
gested a query, whether a judgment
can ever be regarded as fraudulent
and void when the state actually has
been represented by its proper prose-
cuting officer). But see Taff v. State,
69 Tex. Cr. 528, 533, 155 SW 214
(where it was said: "A fraud can
not be practiced upon the jurisdic-
tion of the District Court of Lee
County, although same was at-
tempted to be done with the conni-
vance of the county officers. It is
true, the county attorney is the rep-
resentative of the State, but he has
only such authority as is delegated
to him by the laws of the State; and,
in instances of this character the law
has deprived him of authority to
act, or if he does presume to act, he
acts beyond the scope of authority
conferred on him. He could not
bind his principal, the State
of
Texas").

44. State v. Reed, 26 Conn. 202.
45. Bulson v. Peo., 31 Ill. 409.

46. Johnson v. State, 82 Ala. 29,
2 S 466. But see Jones v. Morris, 97
Va. 43, 33 SE 377 (holding that an
acquittal, under a warrant charging
that accused did unlawfully. take,
steal, and carry away money, bars a
prosecution for the same offense, al-
though he might have objected there-
to because the warrant did not charge
that it was done feloniously).

47. Bradley v. State, 32 Ark. 722; Bennett v. Briggs, (N. J. Sup.) 65 A 717.

48. Washington v. State, 125 Ala. 40, 28 S 78; Wright v. State, 5 Ind. 527; State v. Walters, 16 La. Ann. 400; State v. Ritchie, 3 La. Ann. 715. See also Ex p. Thomas, 12 Porto Rico 350.

49. Pehlman v. State, 115 Ind. 131,
17 NE 270.

50. Ala.-Ex p. Brown, 102 Ala.
179, 15 S 602; Zaner v. State, 90 Ala.
651, 8 S 698; Herrington v. State, 87
Ala. 1. 5 S 831; Gunter v. State, 83
Ala. 96, 3 S 600; Ex p. Simmons, 62
Ala. 416; Allen v. State, 52 Ala. 391;
Waller v. State, 40 Ala. 325; Turner
v. State, 40 Ala. 21; Cobia v. State,
16 Ala. 781.
Ariz.-Kimball

V. Terr.. 13 Ariz.
310, 318, 115 P 70 [cit Cyc].

[blocks in formation]

745.

Pa.-Com. v. Endrukat, 231 Pa. 529, 80 A 1049, 53 LRANS 470 (insanity at time of trial).

S. C.-State v. Spurgin, 12 S. C. L. 252.

Tenn.-Waddle v. State, 112 Tenn. 556, 82 SW 827; Murphy v. State, 7 Coldw. 516; State V. Valentine, 6 Yerg. 533.

Utah.-Peo. v. Kerm, 8 Utah 268, 30 P 988.

Va.-Stuart v. Com., 28 Gratt. (69 Va.) 950; Com. v. Hatton, 3 Gratt. (44 Va.) 623; Com. v. Smith, 2 Va. Cas. (4 Va.) 327; Gibson v. Com., 2 Va. Cas. (4 Va.) 111.

But see Peo. v. Curtis, 76 Cal. 57, 59, 17 P 941 (where in the absence of anything to the contrary appearing in the record it was presumed that the discharge of the jury was with defendant's consent, but the court said: "As the verdict was a nullity. and of no effect, the jury should have been sent out for further deliberation. The verdict constituted no legal reason for the discharge of the jury, and in our judgment, if they were discharged without consent of the defendant .. it operated as an acquittal"). And see infra § 431.

51. Carpenter v. State, 62 Ark. 286, 36 SW 900; Allen v. State, 26 Ark. 333; Mahany v. Peo., 31 Colo. 365, 73 P 26; Com. v. Call, 21 Pick. (Mass.) 509, 32 AmD 284; Waddle v. State, 112 Tenn. 556, 82 SW 827; Fitts v. State, 102 Tenn. 141, 50 SW 756; State V. Ragsdale, 10 Lea (Tenn.) 671; Murphy V. State, 7 Coldw. (Tenn.) 516.

[a] Where defendant consented to a discharge of the jury after a void or defective verdict, he cannot plead former jeopardy, and if the record is silent as to his consent it will be presumed. Peo. v. Kerm, 8 Utah 268, 30 P 988.

52. Fla.-Lovett v. State, 33 Fla.

is not discharged but separates without just cause or excuse, defendant has been in jeopardy and is entitled to be discharged.53

[369] e. Conviction under Void Statute or Ordinance. It has been held that a conviction under a statute or an ordinance which is unconstitutional or otherwise void is no bar to a subsequent prosecution, although there is authority for the opposite view.5 35 But a conviction on an indictment under a valid statute, followed by a sentence to be executed under a statute which has been repealed, is jeopardy, and, although the judgment is invalid for want of a statute under which to punish, the conviction is a bar to a subsequent trial.56

[370] 3. Court of Competent Jurisdiction-a. In General. A person is not put in second jeopardy

389, 14 S 837.

Iowa. State v. Redman, 17 Iowa 329. La.-State v. Ritchie, 3 La. Ann.

715.

Mass.-Com. v. Call, 21 Pick. 509, 32 AmD 284.

Tex.-Alston v. State, 41 Tex. 39. Va.-Com. v. Hatton, 3 Gratt. (44 Va.) 623.

53. Jackson v. State, 102 Ala. 76, 15 S 351.

54. Barber v. State, 151 Ala. 56, 43 S 808; Wiggs v. State, 5 Ala. A. 189, 59 S 516; Rector v. State, 6 Ark. 187; State v. Oleson, 26 Minn. 507, 5 NW 959.

55. McKenney, J., in McGinnis v. State, 9 Humphr. (Tenn.) 43, 49 AmD 697.

56.

Hartung v. Peo.. 26 N. Y. 167, 28 N. Y. 400, 25 HowPr 221; Shepherd v. Peo., 25 N. Y. 406, 24 HowPr 388; Kuckler v. Peo., 5 Park. Cr. (N. Y.) 212.

57. U. S.-Grafton v. U. S., 206 U. S. 333, 27 SCt 749, 51 L. ed. 1084, 11 AnnCas 640; U. S. v. Ball, 163 U. S. 662, 16 SCt 1192, 41 L. ed. 300; Ex p. Lange, 18 Wall. 163, 21 L. ed. 872.

Ala.-Barber v. State, 151 Ala. 56, 43 S 808; Nicholson v. State, 72 Ala. 176.

Ark.-Harp v. State, 59 Ark. 113, 26 SW 714; State v. Ward, 48 Ark. 36, 2 SW 191, 3 AmSR 213; State v. Nichols, 38 Ark. 550; Bradley v. State, 32 Ark. 722; State v. Cheek, 25 Ark. 206. Cal.-Peo. v. Hambery, 84 Cal. 468, 24 P 298; Peo. v. Woods, 84 Cal. 441, 23 P 1119; Peo. v. Cage, 48 Cal. 323, 17 AmR 436.

Colo.-Packer v. Peo., 8 Colo. 361, 8 P 564.

Fla. Strobhar v. State, 55 Fla. 167, 47 S 4.

Ga. Small v. State, 63 Ga. 386; Reich v. State, 53, Ga. 73, 21 AmR 265.

Il-Paulsen v. Peo., 195 Ill. 507, 63 NE 144; Campbell v. Peo., 109 Ill. 565, 50 AmR 621.

Ind.-Joy v. State, 14 Ind. 139. Iowa.-State v. Jamison, 104 Iowa 343. 73 NW 831.

Ky.-Huff v. Com., 42 SW 907, 19 KyL 1064; Blyew v. Com., 91 Ky. 200, 15 SW 356. 12 KyL 742; Williams v. Com., 78 Ky. 93.

La-State v. Jackson, 106 La. 413, 31 S 52; State v. Brown, 8 Rob. 566. Mass.-Com. v. Peters, 12 Metc. 387; Com. v. Roby, 12 Pick. 496; Com. V. Goddard, 13 Mass. 455; Com. v. Hardy, 2 Mass. 303.

Miss.-Cook v. State, 77 Miss. 800, 27 S 605; Helm v. State, 66 Miss. 537, 6 S 322; Montross v. State, 61 Miss. 429; Teat v. State, 53 Miss. 439, 24 AmR 708; Kohlheimer v. State, 39 Miss. 548, 77 AmD 689.

Nebr.-Peterson v. State. 79 Nebr. 132, 112 NW 306, 126 AmSR 651, 14 LRANS 292; Thompson v. State, 6 Nebr. 102.

N. H.-State v. Hodgkins, 42 N. H. 474. N. J.-Duffy v. Britton, 48 N. J. L. 371, 7 A 679.

57

unless his prior acquittal or conviction was by a court having jurisdiction to try him for the offense charged. The court must be one having jurisdiction not only of the offense but also of defendant, which has been obtained by due process based upon legal proceedings.58 But the judgment of a court having jurisdiction is a bar to a subsequent prosecution for the same offense, although the court erred in exercising a discretion vested in it.59

[371] b. Proceedings before Court without Jurisdiction (1) In General. Thus an acquittal or a conviction by a justice of the peace, a police magistrate, or other court not having jurisdiction. of the offense is not former jeopardy, and is no bar to a subsequent trial in a court which has jurisdiction.60 So when one is examined on a charge of

N. Y.-Canter v. Peo., 1 Abb. Dec. 305, 2 Transcr. A. 1, 5 AbbPrNS 21, 38 HowPr 91; Peo. v. Cuatt, 70 Misc. 453, 126 NYS 1114.

N. C.-State v. Tisdale, 19 N. C. 159. Oh.-Kappes v. State, 26 Oh. Cir. Ct. 111.

Philippine-U. S. v. Diaz, 15 Philippine 123 [aff 223 U. S. 442, 32 SCt 250, 56 L. ed. 500, AnnCas1913C 1138]; Grafton v. U. S., 11 Philippine 776; U. S. v. Ballentine, 4 Philippine 672.

R. I.-State v. Watson, 20 R. I. 354, 39 A 193, 78 AmSR 87 [aff 179 U. S. 679, 21 SCt 915, 45 L. ed. 383].

Tex.-Burdett v. State, 9 Tex. 43; Ogle v. State, 43 Tex. Cr. 219, 63 SW 1009, 96 AmSR 860; McLain v. State, 31 Tex. Cr. 558, 21 SW 365; Anderson v. State, 24 Tex. A. 705, 7 SW 40; Simco v. State, 9 Tex. A. 338.

Utah.-State v. Bates, 22 Utah 65, 61 P 905, 83 AmSR 768. Vt.-State v. Bruce, 68 Vt. 183, 34 A 701; State v. Wakefield, 60 Vt. 618, 15 A 181.

Va.-Day v. Com., 23 Gratt. (64 Va.) 915; Marshall v. Com., 20 Gratt. (61 Va.) 845; In re Bailey, 1 Va. Cas. (3 Va.) 258.

Wash.-State v. Hubbell, 18 Wash. 482, 51 P 1039.

W. Va.-State v. Cross, 44 W. Va. 315, 29 SE 527.

Eng.-Wemyss v. Hopkins, L. R. 10 Q. B. 378.

[a] If a defendant is brought before a justice on a warrant for a felonious assault, the justice, if defendant is not guilty of the felonious assault, may receive a plea of guilty of an assault and battery and fine defendant under the small offense law; and if on a subsequent prosecution for an assault and battery with intent to commit murder defendant is found not guilty of the felony, the conviction before the justice of the peace is a bar to a conviction for the assault and battery. Rose v. State, 9 Lea (Tenn.) 388.

58. State v. Goetz, 65 Kan. 125, 69 P 187.

[a] Where failure to file a complaint causes lack of jurisdiction, a conviction does not constitute former jeopardy. Drake V. State, 68 Ala. 510; State v. Goetze, 65 Kan. 125, 69 P 187; Bigham v. State, 59 Miss. 529; Wilson v. State, 16 Tex. 246; Decker v. State, 58 Tex. Cr. 159, 124 SW 912. See also infra § 371.

59. State v. Bowen, 45 Minn. 145, 47 NW 650.

60. U. S.-Grafton v. U. S., 206 U. S. 323, 27 SCt 749, 51 L. ed. 1084, 11 AnnCas 640; Ball v. U. S., 163 U. S. 662, 16 SCt 1192, 41 L. ed. 300.

Ala.-Brown v. State, 120 Ala. 378, 25 S 203; Carter v. State, 107 Ala. 146, 18 S 232; Johnson v. State, 82 Ala. 29, 2 S 466; Nicholson v. State, 72 Ala. 176; Marberry v. State, 7 Ala. A. 58, 60 S 949.

Ark.-Hill v. State, 100 Ark. 373, 140 SW 576; Crowder v. State. 69 Ark. 330, 63 SW 669; Fluty v. State, 45 Ark. 97; State v. Nichols, 38 Ark. 550.

Cal.-Peo. v. Smith, 143 Cal. 597, 77

P 449; Peo. v. Hamberg, 84 Cal. 468, 24 P 298.

Colo.-Packer v. Peo., 8 Colo. 361, 8 P 564.

Conn.-State v. Fox, 83 Conn. 286, 76 A 302, 19 AnnCas 682.

Fla.-Alford v. State, 25 Fla. 852, 6 S 857.

Ga.-Reich v. S., 53 Ga. 73, 21 AmR 265 (prosecution before city council). Ill-Campbell v. Peo., 109 Ill. 565, 50 AmR 621.

Ind.-Welty v. Ward, 164 Ind. 457, 73 NE 889, 3 AnnCas 556; State v. Morgan, 62 Ind. 35; State v. George, 53 Ind. 434; O'Brian v. State, 12 Ind. 369; State v. Odell, 4 Blackf. 156; Stoner v. State, 7 Ind. A. 620, 35 NE 133.

Iowa.-State v. Jamison, 104 Iowa 343, 73 NW 831.

Kan.-State v. Goetz, 65 Kan. 125, 69 P 187.

Ky.-Talbot v. Com., 166 Ky. 659, 179 SW 621; Blyew v. Com., 91 Ky. 200, 15 SW 356, 12 KyL 742. See also Com. v. Davis, 169 Ky. 681, 185 SW 73 (where the indictment had been dismissed and defendant discharged on the ground that the court had no jurisdiction).

Mass.-Com. v. Peters, 12 Metc. 387; Com. v. Goddard, 13 Mass. 455.

Miss.-Huffman v. State, 84 Miss. 479, 36 S 395; Cook v. State, 77 Miss. 800, 27 S 605; Smith v. State, 67 Miss. 116, 7 S 208; Montross v. State, 61 Miss. 429.

Mo.-State v. Payne, 4 Mo. 376. Nebr.-Peterson v. State. 79 Nebr. 132, 112 NW 306, 126 AmSR 651, 14 LRANS 292; Steinkuhler v. State, 77 Nebr. 331, 109 NW 395; Thompson v. State, 6 Nebr. 102.

N. H.-State v. Beldon, 69 N. H. 647, 46 A 743; State v. Hodgkins, 42 N. H. 474.

N. Y.-Peo. v. Cuatt, 70 Misc. 453, 126 NYS 1114; Peo. v. Wendel, 59 Misc. 354, 112 NYS 301; Peo. V. Shenk, 142 NYS 1081.

N. C.-State v. Newell, 172 N. C. 933. 90 SE 594; State v. Phillips, 104 N. C. 786, 10 SE 463; State v. Shelly. 98 N. C. 673, 4 SE 530.

Oh.-State v. Rose, 89 Oh. St. 383, 106 NE 50, LRA1915A 256. Okl.-Hamlin v. State, 8 Okl. Cr. 187, 126 P 704. Philippine.-U. S. v. Jayme, 24 Philippine 90: U. S. v. Almazan, 20 Philippine 225.

30;

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Tenn.-Hodges v. State, 5 Coldw. 7. Tex.-Flournoy v. State, 16 Tex.

Norton V. State, 14 Tex. 387; Barnes v. State, (Cr.) 185 SW 2; Gibson v. State, 47 Tex. Cr. 489, 83 SW 1119; McLean v. State, 31 Tex. Cr. 558, 21 SW 365; McNeil v. State, 29 Tex. A. 48, 14 SW 393.

A

Vt.--State v. Bruce, 68 Vt. 183, 34 701; State v. Wakefield, 60 Vt. 618, 15 A 181.

Va.-Murphy v. Com., 23 Gratt. (64 Va.) 960.

W. Va.-State v. Cross, 44 W. Va. 315, 29 SE 527.

Alta.-Rex v. Pope, 7 Alta. L. 169; Rex v. Taylor, 7 Alta. L. 72, 15 Dom LR 679, 22 CanCrCas 234, 26 WestLR

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