thus charged when it has been impaneled and sworn.27 But a defendant may be put in jeopardy by a trial before a competent court without a jury in cases where he has no legal right to demand a trial by jury;28 and even where defendant is entitled to demand a jury trial, a plea of guilty will constitute a waiver of the right, and a conviction upon such plea will bar another prosecution for the same offense, except in a case in which, under the constitution, a defendant cannot waive trial by jury.30 If the state claims a jury in a criminal case, but the court notwithstanding tries the cause without a jury and acquits defendant, the trial is a nullity, and the cause must be tried again.31 29 [386] G. Determination of Preliminary or Collateral Questions-1. In General. Jeopardy does not attach where the question submitted for the consideration of the court or jury is one which is merely preliminary or collateral to the trial of the question of the guilt or the innocence of accused.32 N. B.-Reg. v. English, 31 N. B. 305. [a] An agreement between counsel in a criminal case that a particular jury shall try the case does not amount to the selection of a jury so as to place accused in jeopardy unless the agreement has been called to the attention of the court and approved by it. Curtis v. State, 9 Ala. A. 36, 63 S 745. [b] In a criminal case tried before an unlawful jury, all proceedings, after plea entered, are wholly void, because of a lack of jurisdiction in the court, and a sentence and judgment therein are mere nullities, and may be so treated by every one at any time. State v. Bates, 22 Utah 65, 61 P 905, 83 AmSR 768. 27. U. S.-U. S. v. Van Vliet, 23 Fed. 35. Ala. Scott v. State, 110 Ala. 48, 20 S 468, 113 Ala. 64, 21 S 425; Lyman v. State, 47 Ala. 686. Ark.-Harp v. State, 59 Ark. 113, 26 SW 714; Williams v. State, 42 Ark. 35. Cal.-Ex p. Fenton, 77 Cal. 183, 19 P 267. Fla.-Allen v. State, 52 Fla. 1, 41 S 593, 120 AmSR 188, 10 AnnCas 1085. Ga. Nolan v. State, 55 Ga. 521, 21 296. Ind.-Joy v. State, 14 Ind. 139. Ky.-Jones v. Com., 97 SW 1118, 30 KyL 288; Huff v. Com., 42 SW 907, 19 KYL 1064; Gaskins v. Com., 97 Ky. 494, 30 SW 1017, 17 KyL 352; Williams v. Com., 78 Ky. 93; Tye v. Com., 3 KyL 59, 11 Ky. Op. 206. La-State v. Robinson, 46 La. Ann. 769, 15 S 146. Minn.-State v. Sommers, 60 Minn. 90, 61 NW 907. Mo.-State v. Webster, 206 Mo. 558, 105 SW 705; State v. Wiseback, 139 Mo. 214, 40 SW 946. Nebr.-Murphy v. State, 25 Nebr. 807, 41 NW 792. N. C.-State v. Smith, 170 N. C. 742, 744, 87 SE 98 [cit Cyc]. Okl.-Schrieber v. Clapp, 13 Okl. 215, 74 P 316; In re McClaskey, 2 Okl. 568, 37 P 854. Or.-Ex p. Tice, 32 Or. 179, 49 P 1038. Pa.-Alexander v. Com., 105 Pa. 1; McFadden v. Com., 23 Pa. 12, 62 AmD 308. Philippine.-U. S. v. Ballentine, 4 Tenn.-Tomasson V. State, 112 Vt. State v. Whipple, 57 Vt. 637. Wash-State v. Hubbell, 18 Wash. 482, 51 P 1039. Wis-McDonald v. State, 79 Wis. 651, 48 NW 863, 24 AmSR 740. Ruling on plea in abatement. A plea of former jeopardy cannot be based upon the action of the court with respect to a plea in abatement.33 Judgment on recognizance. And a judgment against accused on a recognizance for failure to appear is not a former jeopardy, and is no bar to another prosecution for the same offense.34 Payment of costs to open default. The payment by defendant of the costs in a criminal case before a justice in order to open his default does not constitute a former jeopardy nor bar a further prosecution.35 A plea of former jeopardy not being of matter which goes to the question of the innocence of accused, a hearing upon it is not a jeopardy.30 [387] 2. Preliminary Examination. A plea of former conviction or acquittal, or of former jeopardy, cannot be predicated upon a preliminary hearing or its result.37 Accordingly where a magis[a] Failure to take oath.-A plea | the issue tendered by it, such judgof former jeopardy based on the fact that the trial had been entered into before it was discovered that a juror had not taken the oath on his voir dire and was not sworn as a trial juror was properly overruled. State v. Herold, 68 Wash. 654, 123 P 1076, 40 LRANS 1213. [b] The premature swearing of the jury is immaterial where they are subsequently and at the proper stage duly sworn before the introduction of any testimony. Minor v. Com., 5 KyL 176. 28. U. S.-Kepner v. U. S., 195 U. S. 100, 24 SCt 797, 49 L. ed. 114, 1 AnnCas 655. Ind.-Bryant v. State, 72 Ind. 400; Ky. Com. v. Miller, 5 Dana 320. 266. Mass.-Com. V. Cunningham, 13 Tenn.-State v. Layne, 96 Tenn. [a] Where a conviction is by a court of competent jurisdiction, it matters not whether such conviction is by a summary proceeding before justices whose jurisdiction is created by statute, or by trial before a jury. Wemyss v. Hopkins, L. R. 10 Q. B. ment would not have been a bar to a subsequent prosecution for the offense charged in the indictment, for the obvious reason that it was not an adjudication upon the merits involving the defendant's guilt or innocence. When such a plea is sustained by the verdict and judgment, the trial court should quash the indictment, and may order another preferred for the offense charged or intended to be charged"); Hayes v. State, (Ala. A.) 72 S 577. 34. Com. V. Thompson, 3 Litt. (Ky.) 284. [a] Reason for rule.-"A plea of former acquittal, not being of matter involved in the general issuenot being of matter which goes to the question of guilt or innocence-a judgment sustaining it cannot be in the nature of an acquittal. If such were the case, a judgment against a defendant overruling his plea of former acquittal would be a former conviction, and could be pleaded as autrefois convict to the indictment when again called for trial. Hence, the defendant could always escape punishment by pleading a former acquittal to the indictment against him, because if the plea should be found against him it would be a former conviction; if in his favor, a former acquittal. For the same reasons a 30. Paulsen v. Peo., 195 Ill. 507, plea of former jeopardy, whether de63 NE 144; State v. Jackson, 106 La.termined one way or the other, can413, 31 S 52. not be regarded as involving the merits of the case. It does not reach to the question of guilt or innocence, and if determined in defendant's favor the state may have an appeal upon the question, if reserved by it." State v. Hager, 61 Kan. 504, 507, 59 P 1080, 48 LRA 254. 378. 29. Trittipo v. State, 13 Ind. 360; State v. Layne, 96 Tenn. 668, 36 SW 390; McGinnis v. State, 9 Humphr. (Tenn.) 43, 49 AmD 697. 31. Ala. Savell v. State, 150 Ala. Ky.-Com. V. Thompson, 3 Litt. 284. Mass.-Com. v. Taylor, 113 Mass. 4. [a] Verdict of coroner's jury.- 33. Savell v. State, 150 Ala. 97, 99. 43 S 201 (where the court said: "The jeopardy sought to be invoked as a bar to the further prosecution was based upon the action of the court with respect to a plea in abatement, and not one in bar. Had the trial upon the plea culminated in a verdict and judgment for or against 37. Ala.-State v. Vaughan, 121 Ala. 41, 25 S 727; Ex p. Robinson, 108 Ala. 161, 18 S 729; Nicholson V. State, 72 Ala. 176. Ark.-Fluty v. State, 45 Ark. 97. Ind.-State v. Hattabough, 66 Ind. 223; Stoner v. State, 7 Ind. A. 620, 35 NE 133. Kan.-State v. Jones, 16 Kan. 608. Ky.-Com. v. Weber, 33 SW 821, 17 KyL 1131. Mich. Gaffny v. Missaukee County Cir. Judge, 85 Mich. 138, 48 NW 478. But compare Morrissey v. Peo., 11 Mich. 327 (holding that, where an examination has been had before a magistrate on a criminal charge, and accused is discharged, an information cannot afterward be filed against him for the same offense). Mo.-State v. Nast, 209 Mo. 708, 108 SW 563. R. I.-State v. Munroe, 26 R. I. 38, trate has jurisdiction either to try and finally dispose of a case or to bind over the accused to answer in a higher court, and he acts merely in his capacity as an examining magistrate, his judgment either discharging the accused for want of probable cause to find him guilty,38 or binding him over to answer in a superior court,39 cannot be pleaded as former jeopardy. The fact that a committing magistrate who determines that a crime has been committed and that there is sufficient cause to believe accused guilty thereof, and thereupon holds him to answer, errs in his determination of the degree of the crime does not put an end to the prosecution.10 Nor will an order of a magistrate upon a preliminary examination, either committing or discharging accused, bar a second preliminary examination. But where the statute expressly requires the justice to proceed and 57 A 1057. Tex.-Donaldson v. State, (Cr.) 55 SW 826. Va. In re Bailey, 1 Va. Cas. (3 Va.) 258; Com, v. Myers, 1 Va. Cas. (3 Va.) 188. See also McCann v. Com., 14 Gratt. (55 Va.) 570. Wis.-Campbell v. State, 111 Wis. 152, 86 NW 855. 38. Ala.-Ex p. Robinson, 108 Ala. 161, 18 S 729; Ex p. Crawlin, 92 Ala. 101, 9 S 334; Graham v. State, 11 Ala. A. 113, 65 S 717. Ark.-Fluty v. State, 45 Ark. 97. Cal.-Ex p. Fenton, 77 Cal. 183, 19 P 267; Ex p. Cahill, 52 Cal. 463; Peo. v. Swain, 5 Cal. A. 421, 90 P 720. Conn.-State v. Fox, 83 Conn. 286, 76 A 302, 19 AnnCas 682. Ill.-Mooney v. Peo., 96 Ill. A. 622. Ind.-State v. Hattabough, 66 Ind. 223. Kan.-State v. Jones, 16 Kan. 608. Ky.-Com, v. Weber, 33 SW 821, 17 KyL 1131. Mass.-Com. v. Sullivan, 156 Mass. 487, 31 NE 647. Mich.-Gaffney v. Missaukee County, 85 Mich. 138, 48 NW 478. Mo.-State v. Nast, 209 Mo. 708, 108 SW 563; State v. Whalen, 148 Mo. 286, 49 SW 989. Nebr.-Sieck v. State, 96 Nebr. 782, 148 NW 928; Van Buren v. State, 65 Nebr. 223, 91 NW 201; Garst's Application, 10 Nebr. 78, 4 NW 511. N. Y.-Peo. v. Dillon, 197 N. Y. 254, 90 NE 820; Peo. v. Shenk, 142 NYS 1081. Pa.-Com. v. Robbins, 35 Pa. Co. 479. R. I.-State v. Munroe, 26 R. I. 38, 57 A 1057. Va.-McCann v. Com., 14 Gratt. (55 Va.) 570. See Com. v. Myers, 1 Va. Cas. (3 Va.) 188 (holding that an examining court has no power to acquit a person charged with murder of that crime and to remand him to be tried for manslaughter; and if it makes such a discrimination the prisoner is not thereby discharged, but may be indicted for murder). Wis.-Montgomery V. State, 128 Wis. 183, 107 NW 14; Campbell v. State, 111 Wis. 152, 86 NW 855. [a] A discharge by a United States commissioner is not equivalent to an acquittal. Williams v. State, 169 Ind. 384, 82 NE 790. [b] Discharge without examination at instance of prosecuting attorney does not bar subsequent arrest and prosecution for the same offense. Jambor v. State, 75 Wis. 664, 44 NW 963. 39. Ala.-Ex p. Ross, 187 Ala. 16, 65 S 782; Spraggins v. State, 139 Ala. 93, 35 S 1000; State v. McFarland. 121 Ala. 45, 25 S 625; State v. Vaughan, 121 Ala. 41, 25 S 727 (where it was said, per McClellan, C. J.: "And why is not the proposition entirely sound? What is there to stand in the way of such second proceeding against a defendant who has been admitted to bail? He has not been convicted; 41 finally to dispose of the case, his judgment binding over defendant may be pleaded as former jeopardy.+2 The mere fact that a magistrate first ordered a prisoner to recognize to appear to a higher court, but afterward at the same hearing revoked the order and sentenced him finally, will not prevent such sentence from being a bar to a subsequent prosecution, where the magistrate has jurisdiction to award final judgment.43 [§ 388] H. Quashing or Dismissing Indictment or Sustaining Demurrer-1. In General. As a general proposition where an indictment is quashed or dismissed as being insufficient, or where a demurrer is sustained, and accused is therefore discharged, there is no such jeopardy as will bar a prosecution on another indictment for the same offense.44 So where accused has secured a decision he has not been acquitted; he has not been put in jeopardy. There is no plea known to the law that can be interposed between him and a new investigation followed by a new and different order"); Brown v. State, 105 Ala. 117, 16 S 929; Graham v. State, 11 Ala. A. 113, 65 S 717; Marberry v. State, 7 Ala. A. 58, 60 S 949. Conn.-State v. Fox, 83 Conn. 286, 76 A 302, 19 AnnCas 682. | 39 Cal. 705. (2) A discharge upon a prisoner's own recognizance is nothing more than an admission to bail without surety. Peo. v. Harber, 100 App. Div. 317, 91 NYS 571. 42. Brown v. State, 105 Ala. 117, 16 S 929; Hazelton v. State, 13 Ala. A. 243, 68 S 715. [a] In Georgia, since Pen. Code § 761, providing that the judge of a county court may discontinue a trial, and may commit or bind over accused to the superior court, if it shall apjurisdiction of such county court, does not apply to the criminal court of Atlanta, when a trial is once begun in such criminal court accused is in legal jeopardy. Bell v. State, 103 Ga. 397, 30 SE 294, 68 AmSR 102. Ind.-Stoner v. State, 7 Ind. A. 620, 35 NE 133 (holding that where, before a justice the jury found defend-pear that the offense is beyond the ant guilty, and furthermore stated that the punishment that the jury was authorized to assess was inadequate, and defendant was held for a superior court under Rev. St. [1881] § 1636, the holding was not former jeopardy). Mass.-Com. v. Rice, 216 Mass. 480, 104 NE 347; Com. v. Sullivan, 156 Mass. 487, 31 NE 647; Com. v. Hamilton, 129 Mass. 479; Com. v. Many, 14 Gray 82; Com. v. Golding, 14 Gray 49; Com. v. Boyle, 14 Gray 3; Com. v. Harris, 8 Gray 470. Mo.-State v. Nast, 209 Mo. 708, 108 SW 563. N. H.-State v. Belden, 69 N. H. 647, 46 A 743. N. Y.-Peo. v. Pascowitch, 158 App. Div. 812, 144 NYS 203. R. I-State v. Munroe, 26 R. I. 38, 57 A 1057. Tex.-Donaldson v. State, (Cr.) 55 SW 826. 40. Va.-Wolverton v. Com., 75 Va. 909. Peo. v. Pascowitch, 158 App. Div. 812, 144 NYS 203. 41. Ala.-Ex p. Robinson, 108 Ala. 161, 18 S 729; Ex p. Crawlin, 92 Ala. 101, 9 S 334. Cal.-Ex p. Fenton, 77 Cal. 183, 19 P 267. Conn.-State v. Fox, 83 Conn. 286, 76 A 302, 19 AnnCas 682. Kan.-State v. Jones, 16 Kan. 608. Mich. Gaffney v. Missaukee County Cir. Judge, 85 Mich. 138, 48 NW 478. Nebr.-Sharp v. State, 61 Nebr. 187, 85 NW 38; Garst's Application, 10 Nebr. 78, 4 NW 511. Nev.-Ex p. Oxley, 38 Nev. 379, 149 P 992. Wis.-Campbell v. State, 111 Wis. 152, 86 NW 855. [a] In California, under Pen, Code § 999, a magistrate's order discharging a defendant does not operate as a bar to a second hearing of the charge either by the magistrate himself or by a grand jury. Patterson v. Conlan, 123 Cal. 453, 56 P 105; Peo. v. Swain, 5 Cal. A. 421, 90 P 720. [b] The release of a person accused of a crime on bail, after a preliminary examination, (1) is no bar to his subsequent arrest on another complaint for the same offense, and to his commitment without bail. State v. Vaughan, 121 Ala. 41, 25 S 727; Ex p. Robinson, 108 Ala. 161, 18 S 729: Bennett V. Briggs, (N. J. Sup.) 65 A 717. See also Ex p. Walsh, 43. Com. v. Goddard, 13 Mass. 455. 44. U. S.-U. S. v. Rogoff, 163 Fed. 311; U. S. v. Van Vliet, 23 Fed. 35. Ala.-Weston v. State, 63 Ala. 155; Faulk v. State, 52 Ala. 415; Curtis v. State, 9 Ala. A. 36, 40, 63 S 745 [cit Cyc]; Stinson v. State, 3 Ala. A. 74. 57 S 509. Ark.-Reese v. State, 73 Ark. 235, 83 SW 918; State v. Sherman, 71 Ark. 349, 74 SW 293; Williams v. State, 42 Ark. 35; State v. Gill, 33 Ark. 129: Brown v. State, 10 Ark. 607. Cal.-Peo. v. Green, 130 Cal. 72, 62 P 408; Peo. v. Campbell, 59 Cal. 243, 43 AmR 257; Kalloch v. San Francisco Super. Ct., 56 Cal. 229; Peo. v. Varnum, 53 Cal. 630; Peo, v. McNealy, 17 Cal. 332; Peo. v. March, 6 Cal. 543. D. C.-District of Columbia V. Hauf, 33 App. 197. Ga.-Hill v. Nelms, 122 Ga. 572, 50 SE 344; Brown v. State, 109 Ga. 570, 34 SE 1031. Ind.-Blocher v. State, 98 NE 118; Joy v. State, 14 Ind. 139; Miller v. State, 33 Ind. A. 509, 71 NE 248. Iowa.- State v. Scott, 99 Iowa 36, 68 NW 451; Reddan v. State, 4 Greene 137. Ky.-Com. v. Ransdall, 153 Ky. 334, 155 SW 1117; Bennett v. Com., 150 Ky. 604, 150 SW 806, 43 LRANS 419; Bowman v. Com., 146 Ky. 486, 143 SW 47; Jones v. Com., 97 SW 1118, 30 KyL 288; Com. v. Bray, 123 Ky. 336, 96 SW 522, 29 KyL 757; Turner v. Com., 42 SW 1129, 19 KyL 1161: Little v. Com., 3 Bush 22; Com. v. Anthony, 2 Metc. 399; Tye v. Com., 3 KyL 59, 11 Ky. Op. 206; Warmouth v. Com., 12 Ky. Op. 387. La.-State v. Taylor, 34 La. Ann. 978. Md. Cochrane v. State, 6 Md. 400. Mass.-Com. v. Farrell, 105 Mass. 189; Com. v. Gould, 12 Gray 171. Mich.-Mentor v. Peo., 30 Mich. 91. Minn.-State v. Holton, 88 Minn. 171, 92 NW 541. Mo.-State v. Goddard, 162 Mo. 198, 62 SW 697. Nebr.-State v. Priebnow, 16 Nebr. 131, 19 NW 628. Nev. In re Hironymous, 38 Nev. 194, 147 P 453. that the indictment is void,45 or has been granted an instruction based on its defective character directing the jury to acquit,46 he is estopped when subsequently indicted to assert that the former indictment was valid. In such case there may be a new prosecution, whether the indictment in the former prosecution was good or bad.47 But the dismissal of an indictment on the ground that the prosecution is barred by the statute of limitations prevents a subsequent prosecution for the same offense.48 And N. Y.-Peo. v. Gluckman, 60 App. Div. 307, 70 NYS 173; Peo. v. Loomis, 30 How Pr 323. N. C.-State v. Drakeford, 162 N. C. 667, 669, 78 SE 308 [quot Cyc]. Okl.-Ex p. Dodson, 3 Okl. Cr. 514, 107 P 450. Pa. Com. v. Allen, 24 Pa. Co. 65. S. C.-State v. Jenkins, 20 S. C. 351; State v. Ray, 24 S. C. L. 1, 33 AMD 90. Tenn.-Pritchett v. State, 2 Sneed 285, 62 AmD 468. Tex.-McCaskey v. State, 76 Tex. Cr. 255, 174 SW 338; January v. State, 66 Tex. Cr. 302, 146 SW 555; Morville v. State, 63 Tex. Cr. 553, 141 SW 102; Shoemaker v. State, 58 Tex. Cr. 518, 126 SW 887; Carroll v. State, 50 Tex. Cr. 485, 98 SW 859, 123 AmSR 851, 14 AnnCas 426; Guinn v. State, (Cr.) 65 SW 376. if the indictment or information is valid and is dismissed without defendant's consent, after jeopardy has attached, he cannot be prosecuted again for the same offense.49 Under the statutes in several states, if a demurrer to an indictment or information is sustained, there cannot be a second prosecution for the same offense unless the court directs the case to be resubmitted to the grand jury.50 Such statutes have no application to misdemeanors prosecuted by indictment in courts without power or authority to 48. U. S. v. Oppenheimer, 242 U. S. 85, 37 SCt 68. 49. Ala-Turk v. State, 140 Ala. 110, 37 S 234. Ark.-Williams v. State, 42 Ark. 35; Lee v. State, 26 Ark. 260, 7 AmR 611. Ind.-Leach v. State, 177 Ind. 234, 97 NE 792; State v. Reed, 168 Ind. 588, 81 NE 571. Ky. Drake v. Com., 96 SW 580, 29 KyL 981; Williams v. Com., 78 Ky. 93; Blair v. Meshew, 7 Ky. Op. 103. Mass.-Com. v. Hart, 149 Mass. 7, 20 NE 310. Mich.-Peo. v. Taylor, 117 Mich. 583, 76 NW 158. Miss. Coleman v. State, 83 Miss. 290, 35 S 937, 64 LRA 807, 1 AnnCas 406. Mo.-State v. Webster, 206 Mo. 558, 105 SW 705. Pa.-Com. v. Cawley, 4 Pa. Dist. 69, 16 Pa. Co. 259, 7 Kulp. 539. Va.-Com. v. Willcox, 111 Va. 849, 69 SE 1027; Stuart v. Com., 28 Gratt. Tex. Shoemaker v. State, 58 Tex. (69 Va.) 950; Souther v. Com., 7 Cr. 518, 126 SW 887; Carroll v. State, Gratt. (48 Va.) 673; Com. v. Chiches-50 Tex. Cr. 495, 98 SW 859, 123 Am ter, 1 Va. Cas. (3 Va.) 312. SR 851, 14 AnnCas 426. Utah.-State v. Hows, 31 Utah 168, 87 P 163. Wis-State v. Peterson, 152 Wis. 44, 139 NW 512; State v. Lloyd, 152 Wis. 24, 139 NW 514, AnnCas1914C 415; Von Rueden v. State, 96 Wis. 671, 71 NW 1048. Wash.-State v. Durbin, 32 Wash. 289, 73 P 373. See also U. S. v. Perez, 1 Philip--The pine 203 (where an order sustaining a demurrer to a complaint was reversed on an appeal by the complaining witness). [a] A motion to quash an indictment is in the nature of a plea in abatement, and a ruling upon such motion quashing the indictment or information is ordinarily no bar to a prosecution of the same person for the same offense upon a new indictment or information. State v. Lloyd, 152 Wis. 24, 139 NW 514, AnnČas 1914C 415. [b] The erroneous granting of a motion of defendant, after pleading not guilty without demurring, to dismiss the indictment on the ground that the act defining the offense had been repealed, is not a bar to further prosecution of the offense. Terr. V. Ruval, 9 Ariz. 415, 84 P 1096. [c] In Kentucky, under the express provision of Cr. Code Pr. § 178, the dismissal of an indictment by the court on demurrer is no bar to a further prosecution, unless it is dismissed for an objection to its form or substance taken at the trial, or because of variance between the indictment and the proof, or because the indictment contains matter which is a legal defense or a bar to the indictment. Drake v. Com., 96 SW 580, 29 KyL 981; Com. v. Bray, 123 Ky. 336, 96 SW 522, 29 KyL 757; Gaskins v. Com., 97 Ky. 494, 30 SW 1017, 17 KyL 352. [d] In New York an indictment set aside on motion is not a bar to a further prosecution, although accused is entitled to be discharged from custody unless an order of resubmission is made. 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]. 45. U. S. v. Jones, 31 Fed. 725; Carroll v. State, 50 Tex. Cr. 485, 98 SW 859, 123 AmSR 851, 14 AnnCas 426. 46. State v. Meekins, 41 La. Ann. 543, 6 S 822. 47. Miller v. State, 33 Ind. A. 509, 71 NE 248. [a] Dismissal inadvertently made. inadvertent noting by the court, on the back of an indictment for libel, of the granting of a motion to dismiss, which motion was made with reference to an indictment for larceny against the same person, was not a dismissal of the indictment for libel so as to bar a prosecution thereon. Peo. v. Bihler, 154 App. Div. 618, 139 NYS 819 [aff 210 N. Y. 592 mem, 104 NE 1136 mem]. [b] A dismissal of one count of an indictment at the close of the evidence over defendant's objection furnishes no ground for reversal of judgment of conviction on another count. Leach v. State, 177 Ind. 234, 97 NE_792. 50. Peo. v. Quijada, 154 Cal. 243, 97 P 689; Ex p. Williams, 116 Cal. 512, 48 P 499; Peo. v. O'Leary, 77 Cal. 30, 18 P 856, 22 P 24; Peo. v. Jordan, 63 Cal. 219; Peo. v. Varnum, 53 Cal. 630; Peo. v. Rosenthal, 197 N. Y. 394, 90 NE 991, 46 LRANS 31 [aff 226 U. S. 260, 33 SCt 27, 57 L. ed. 212]; Peo. v. Davis, 163 App. Div. 662, 148 NYS 988; Peo. v. Bissert, 71 App. Div. 118, 75 NYS 630 [aff 172 N. Y. 643 mem, 65 NE 1120 mem]; Peo. v. Gluck man, 60 App. Div. 307, 70 NYS 173, 15 N. Y. Cr. 441 [aff 168 N. Y. 182, 61 NE 175, 10 NYAnnCas 245] (where it was said to be quite doubtful whether this could apply to a criminal information where there was no indictment); Julia v. Sotto, 2 Philippine 247. [a] In California Pen, Code § 1008, providing that, if a demurrer is allowed, the judgment is final on the indictment or information and is a bar to another prosecution unless the court directs the case to be resubmitted or a new information to be filed, (1) is not limited in its application to cases where the original indictment or information states a public offense, but applies also where it does not state any offense whatsoever. Ex p. Hayter, 16 Cal. A. 211, 116 P 370. (2) But this section does not apply to a case where no demurrer was interposed. Peo. v. Ammerman, 118 Cal. 23, 50 P 15. [b] In Iowa Code §§ 4355, 4356 permit the district court to order a resubmission of a cause to a grand jury when a demurrer to the indictment has been sustained, if the demurrer was not sustained on the ground that the offense charged was within the exclusive jurisdiction of another county, or on the ground that the indictment contains matter which is a legal defense or bar to the indictment. State v. Fields, 106 Iowa 406, 76 NW 802. [c] In Nevada the statute does not apply where an indictment is dismissed on motion of the prosecuting officer on the ground that a clerical error appears therein. In re Hironymous, 38 Nev. 194, 147 P 453. [d] In Utah (1) where a demurrer to an information is sustained, and the court makes no order requiring the case to be submitted to another grand jury, or that another information be filed, but orders accused discharged, such order is a bar to another prosecution for the same offense. Tooele City v. Hoffman, 42 Utah 596, 134 P 558; State v. Crook, 16 Utah 212, 51 P 1091. (2) In view of Comp. L. (1907) § 4779, a motion to set aside an information made under § 4771 is not equivalent to a demurrer, and an order granting it will not bar a subsequent prosecution under § 4783. State v. Springer, 40 Utah 471, 121 P 976. [e] By whom order for resubmission must be made.-An order for resubmission must be made by the judge sustaining the demurrer. Peo. v. Zerillo, 146 App. Div. 812, 816, 131 NYS 500 (where the court said: "The discretion which is to be exercised in directing a resubmission is the contemporaneous act of the judge who, having heard the arguments of the parties, has decided the validity or invalidity of the indictment, and should best know whether the objection which he has deemed well taken could or should be remedied upon a new submission. To permit such discretion to be exercised by another judge more than fourteen months afterwards is in effect a review of the first judgment, and such a motion might be renewed indefinitely until some judge was found who, perhaps deeming the conclusions originally reached incorrect, would feel obligated to grant it"). a [f] Sufficiency of direction to resubmit.-(1) A direction by the court to the district attorney to file a new information when a demurrer to former information is sustained is a sufficient compliance with Pen, Code $ 1008, without rendering an opinion that the objection to the information could be overcome by filing another. Peo. v. O'Leary, 77 Cal. 30, 18 P 856. (2) So an order allowing a demurrer and reciting that the court is of the "opinion that a new information should be filed," being an exercise of judicial authority, is good, and does not entitle defendant to a discharge, even though the minutes only give leave to file another information. Ex p. Hughes, 160 Cal. 388, 117 P 437. (3) But a mere permissive order, sustaining a demurrer, "with leave" to file a new information, entitles defendant to a discharge. Ex p. Williams, 116 Cal. 512, 48 P 499. [g] Defense under such provision not jeopardy.-"It is therefore evident that this is not a case of jeopardy, notwithstanding the exception or defense set up by the accused is direct a submission or a resubmission of a case to a grand jury.51 A statutory provision that if after a demurrer to an indictment has been sustained a new indictment is not found by the next grand jury defendant shall be discharged does not bar a further prosecution, where the case was submitted to three consecutive grand juries.52 Time of quashing, or of sustaining demurrer. It does not seem to be material whether the indictment was quashed or the demurrer thereto sustained before the jury were impaneled, or thereafter and before the case was submitted to the jury.53 A partial trial on an insufficient indictment which was quashed at the close of the evidence for the state does not put accused in jeopardy so as to prevent a subsequent trial for the same offense.54 Reversal of decision sustaining demurrer. Where a demurrer to a valid indictment is erroneously sustained, and the judgment sustaining the demurrer is reversed, defendant has not been in jeopardy and may be tried subsequently for the same offense.55 [389] 2. Felonies and Misdemeanors Distinguished. It is provided by statute in some jurisdiccomplete and is sufficient to offset the accusation brought by the complaining witness in this case. Section 23 [of General Orders, No. 58] establishes a special defense, which, without constituting jeopardy, produces, nevertheless, the same effect as a matter of law, inasmuch as it is a bar to further prosecution for the same offense." Per Mapa, J., in Julia v. Sotto, 2 Philippine 247, 254. 51. Ex p. Dodson, 3 Okl. Cr. 514, 107 P 450. See also infra § 389. 52. Ex p. Job, 17 Nev. 184, 30 P 699. 53. U. S. v. Rogoff, 163 Fed. 311; Brown v. State, 109 Ga. 570, 34 SE 1031; Joy v. State, 14 Ind. 139; Huff v. Com., 42 SW 907, 19 KyL 1064. 54. Blocher v. State, (Ind.) 98 NE 118. 55. U. S. v. Van Vliet, 23 Fed. 35; Com. v. Maynard, 91 Ky. 131, 15 SW 52, 12 KyL 710. tions that a judgment of dismissal shall bar a seeond prosecution if the offense is a misdemeanor, but not if it is a felony.56 Where the offense charged is a felony, the fact that the jury returns a verdict of guilty of a misdemeanor will not affect the offense charged so as to make the former dismissal a bar to the action.57 It is not necessary, when a case has been dismissed, to set aside such judgment of dismissal before entertaining a second prosecution.5% 1. [§ 390] I. Nolle Prosequi or Discontinuance In General-a. Before Beginning Trial. It is a general rule that a nolle prosequi, dismissal or discontinuance entered before defendant is called upon to plead,59 or before the jury are impaneled and sworn, ,60 is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense. [391] b. After Beginning Trial. But, as a general rule, where a jury have been impaneled and sworn, the prisoner's jeopardy has begun, and the entry of a nolle prosequi or a discontinuance` thereafter during the trial, over the objection of accused, unless on account of the insufficiency of the indictdismissals of misdemeanor prosecu- | 54 SE 931; Jackson v. State, 76 Ga tions made by the court upon its own 551; Doyal v. State, 70 Ga. 134; Bird motion, or upon the motion of the v. State, 53 Ga. 602; Reynolds v. prosecuting attorney, in such manner State, 3 Ga. 53. as to evidence an abandonment by the state of the prosecution of defendant for the misdemeanor charged, and which take the place of the common-law nolle prosequi, that render accused immune, under Remington & B. Code § 2125, from another prosecution for the same misdemeanor, and the setting aside of an information under § 2101 of such code will not render defendant so immune. State v. Haffer, 94 Wash. 136, 162 P 45, LRA1917Ć 610, AnnCas1917E 229. 57. State v. Armstrong, 29 Wash. 57, 69 P 392. [a] The offense charged is the guide for the court, and not the verdict rendered upon a trial of the offense charged. State v. Armstrong, 29 Wash. 57, 69 P 392. 58. Peo. v. Kerrick, 144 Cal. 46, 56. See statutory provisions; and Peo. v. Quijada, 154 Cal. 243, 97 P77 P 711. 689; Peo. v. Kerrick, 144 Cal. 46, 77 P 711; Peo. v. Smith, 143 Cal. 597, 77 P 449; Peo. v. Palassou, 14 Cal. A. 123, 111 P 109; Peo. v. Rivera, 7 Porto Rico 325; State v. Wickstrom, 92 Wash. 503, 159 P 753; State v. Alexander, 65 Wash. 488, 118 P 645; State v. Seright, 48 Wash. 307, 93 P 521; State v. Campbell, 40 Wash. 480, 82 P 752. [a] Several successive dismissals of informations against one charged with a felony, and a grand jury's neglect to consider the charge after investigation, are not a bar to a further prosecution for the same offense. Patterson v. Conlan, 123 Cal. 453, 56 P 105. [b] Discharge without trial of one accused of felony.-If a defendant has been held to answer by a justice of the peace for a felony, and the grand jury recommend that the case be referred to the next grand jury, and the county court orders that defendant be discharged from custody, the order is not a bar to another prosecution of defendant for the same offense, under a statute which provides that an order for the dismissal of an action is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony. Ex p. Cahill, 52 Cal. 463. [c] In California, under Pen. Code § 1387, a subsequent prosecution for a misdemeanor is not barred by a dismissal where such dismissal is made for the purpose of amending the information. Peo. v. Luck Sing, 32 Cal. A. 91, 162 P 137. [d] In Washington it is only those Ill. O'Donnell v. Peo., 224 Ill. 218. 79 NE 639, 8 AnnCas 123. Ind.-Dye v. State, 130 Ind. 87, 29 NE 771; Halloran v. State, 80 Ind. 586. Kan.-State v. Ingram, 16 Kan. 14. Ky.-Dilger v. Com., 88 Ky. 550, 11 SW 651, 11 KyL 67; Williams v. Com., 78 Ky. 93; Wilson v. Com., 3 Bush 105. La.-State v. Ayles, 120 La. 661, 45 S 540; State v. Ruffin, 117 La. 357, 41 S 647; State v. Byrd, 31 La. Ann. 419; State v. Hornsby, 8 Rob. 583, 41 AmD 314. Me.-State v. Smith, 67 Me. 328. Mass.-Com. v. Galligan, 156 Mass. 270, 30 NE 1142; Com. v. Cutler, 9 Allen 486; Bacon v. Towne, 4 Cush. 217; Com. v. Tuck, 20 Pick. 356; Com. v. Wheeler, 2 Mass. 172. Mich.-Peo. v. Kuhn, 67 Mich. 463, 35 NW 88. 59. U. S.-U. S. v. Shoemaker, 27 F. Cas. No. 16,279, 2 McLean 114. Mo.-State v. Taylor, 171 Mo. 465, Del.-State v. Tindal, 5 Del. 488. 71 SW 1005; State v. Goddard, 162 Ga.-Jones v. State, 115 Ga. 814, 42 Mo. 198, 62 SW 697; State v. Balch, SE 271; Bird v. State, 53 Ga. 602. 136 Mo. 103, 37 SW 808; Ex p. DonHawaii.-Republic v. Oishi, 9 Ha-aldson, 44 Mo. 149; State v. Lopez, 19 waii 641; Rex v. A. Manner, 3 Ha-Mo. 254. waii 339. La-State v. Hornsby, 8 Rob. 583, 41 AmD 314. N. Y.-Peo. v. Dillon, 197 N. Y. 254, Pa-Zink v. Schuylkill County, 1 97. S. C. State v. Haskett, 22 S. C. L. Va.-Wortham v. Com., 5 Rand. (26 [a] Dismissal for failure to ap- S 560. Ark.-Floyd v. State, 80 Ark. 94, 96 66 SW 195. N. H.-State v. Dover, 46 N. H. 452. N. Y.-Peo. v. Loomis, 30 How Pr 323; Gardiner v. Peo., 6 Park. Cr. 155. N. C.-State v. Smith, 170 N. C. 742, 87 SE 98; State v. Williams, 151 N. C. 660, 65 SE 908; State v. Smith, 129 N. C. 546, 40 SE 1; State v. Casey, 44 N. C. 209; State v. Thornton, 35 N. C. 256; State v. Tisdale, 19 N. C. 159; State v. McNeill, 10 N. C. 183. Okl.-Ex p. Warford, 3 Okl. Cr. 381, 106 P 559. Or.-State v. Reinhart, 26 Or. 466, 38 P 822. Pa.-Hester v. Com., 85 Pa. 139: Com. v. Ames, 26 Pa. Co. 367, 8 Lack LegN 19, 15 YorkLegRec 172; Zink v. Schuylkill County, 1 LegChron 172. Porto Rico.-Peo. v. Pagan, 23 Porto Rico 770. S. C.-State v. Messervey, 105 S. C. 254, 89 SE 662; State v. Richardson, 47 S. C. 166, 25 SE 220, 35 LRA 238; State v. Haskett, 21 S. C. L. 95, 22 S. C. L. 97; State v. McKee, 17 S. C. L. 651, 21 AmD 499. Tex.-Longley V. State, 43 Tex. 490; Jackson V. State, 37 Tex. Cr. 128, 38 SW 1002; Branch v. State, 20 Tex. A. 599; Venters v. State, 18 Tex. A. 198. Conn.-State v. Main, 31 Conn. 572; 64 or be ment,61 or because of a material variance,2 cause issue was not joined,63 will operate and may be pleaded subsequently as an acquittal, and this rule applies notwithstanding such nolle prosequi is entered with the consent of the court.65 In some jurisdictions, however, where former jeopardy cannot be pleaded until after there has been a verdict, a nolle prosequi entered at any stage of the trial before verdict is not a bar to a subsequent prosecution.66 In others the authority of the prosecuting officer, in case of a felony, to enter a nolle prosequi V. State, 128 Cas. (4 Va.) 345. [a] Before “submission" of case. -Until the jurors have been impaneled and sworn, a case is not "submitted" to the jury, within Pen. Code (1910) § 982, authorizing the entry of a nolle prosequi at any time before submission. Fortson v. State, 13 Ga. A. 681, 79 SE 746. [b] After jury have taken seats in jury box.-A nolle prosequi may be entered where the jurors have not been sworn, although they have been struck and have taken their seats in the jury box. Fortson v. State, 13 Ga. A. 681, 79 SE 746. [c] After four jurors sworn.-Accused was not put in jeopardy where the indictment was nolle-prossed after the trial was entered upon and four jurors sworn. O'Donnell V. Peo., 224 Ill. 218, 79 NE 639, 8 Ann Cas 123. [d] Felony subsequently charged as misdemeanor.- Where a nolle prosequi has been entered on an in dictment for a felonious assault, F. Cas. No. 16,279, 2 McLean 114. 204. Tex.-Longley v. State, 43 Tex. 490; Shoemaker v. State, 58 Tex. Cr. 518, 126 SW 887; Guinn v. State, (Cr.) 65 SW 376; Jackson v. State, 37 Tex. Cr. 128, 36 SW 1002; Branch v. State, 20 Tex. A. 599; Ex p. Rogers, 10 Tex. A. 655, 38 AmR 654. [a] Indictment sufficient at common law but insufficient under statute.-But a conviction and nolle prosequi on an indictment sufficient at common law, but insufficient under the statute, is a bar to a subsequent indictment under the statute. Fletcher v. U. S., 9 F. Cas. No. 4,868, 1 Hayw. & H. 186; Fletcher v. U. S., 9 F. Cas. No. 4,869, 1 Hayw. & H. 200 after the trial has begun, and before verdict, is subject only to the right of defendant to insist on going on with the trial; and, if he does not so insist, a nolle prosequi operates only to discharge the particular indictment under which he is being prosecuted, and does not bar a subsequent prosecution for the same offense.67 After disagreement and discharge of jury. But a nolle prosequi entered after a disagreement and discharge of the jury will not bar another prosecution for the same offense.68 64. U. S.-U. S. v. Farring, 25 F. Cas. No. 15,075, 4 Cranch C. C. 465; U. S. v. Shoemaker, 27 F. Cas. No. 16,279, 2 McLean 114. Ala.-McGehee v. State, 58 Ala. 360; Grogan v. State, 44 Ala. 9; State v. Kreps, 8 Ala. 951. See also Norman v. State, 13 Ala. A. 337, 69 S 362 (where a nolle prosequi was entered after the trial was commenced and the court said that the time of the entry affected the question of former jeopardy only in case defendant should ever be indicted again for the offense there charged). Colo.-Roland v. Peo., 23 Colo. 283, 47 P 269. Ga.-Franklin v. State, 85 Ga. 570, 11 SE 876; Jackson v. State, 76 Ga. 551; Doyal v. State, 70 Ga. 134; Jones v. State, 55 Ga. 625; Reynolds v. State, 3 Ga. 53. Ind. Boswell V. State, 111 Ind. 47, 11 NE 788; Halloran v. State, 80 Ind. 586; Joy v. State, 14 Ind. 139; Harker v. State, 8 Blackf. 540. Ky.-Huff v. Com., 42 SW 907, 19 KyL 1064; Harris v. Tiffany, 8 B. Mon, 225. Mass.-Com. v. Hart, 149 Mass. 7, 20 NE 310. 583, 76 NW 158; Peo. v. Pline, 61 Patterson, 116 Mo. 505, 22 SW 696; Ex p. Snyder, 29 Mo. A. 256. Mont.-State v. Gaimos, 53 Mont. 118, 162 P 596. Nebr.-Murphy v. State, 25 Nebr. 807, 41 NW 792. 292, 302, 107 P 1064, 27 LRANS 1181 N. M.-U. S. v. Aurandt, 15 N. M. [cit Cyc]. N. Y.-Peo. v. Goldfarb, 152 App. Div. 870, 138 NYS 62 [aff 213 N. Y. 664 mem, 107 NE 1083 mem]. Oh.-Baker v. State, 12 Oh. St. 214; Mount v. State, 14 Oh. 295, 45 AmD 542. Pa.-Com. v. Cawley, 4 Pa. Dist. 69, 7 Kulp 539, 16 Pa. Co. 259. Porto Rico.-U. S. v. Fernandez, 1 Porto Rico Fed. 453. R. I.-State v. Nelson, 19 R. I. 467, 34 A 990, 61 AmSR 780, 33 LRA 559. Tenn.-State v. Connor, 5 Coldw. 311. Tex.-Elehash v. State, 35 Tex. Cr. 599, 34 SW 928. Utah.-State v. Hows, 31 Utah 168, 87 P 163. [a] Reason for rule. "It claimed that the attorney for the is Commonwealth has a right to enter a nolle prosequi during a trial, and leave with the defendant his right to a verdict; and that if the defendant does not insist upon that right, but accepts his discharge without a verdict, there will be no bar to an62. Martha v. State, 26 Ala. 72; other prosecution. It would seem State v. Dougherty, 22 Del. 398, 70 A that after the termination of a prose16; Elehash v. State, 35 Tex. Cr. 599, cution there would be nothing before 34 SW 928; Ex p. Rogers, 10 Tex. A. 655, 38 AmR 654; State v. Poole, 64 the court upon which a verdict could Wash. 47, 116 P 468. See supra § 380. be rendered, and that the court could do nothing except to discharge the [a] A statute which authorizes a defendant. The true rule would seem nolle prosequi to be entered and an- to be, that, after a trial has comother indictment to be preferred, in menced, the commonwealth's attorcase of a material variance, is not ney, though he has the power, has unconstitutional as putting defend- not the right, to terminate the prosant twice in jeopardy. State v. ecution without a verdict; and his Kreps, 8 Ala. 951. refusal of record to further prosecute the indictment has the effect of and amounts to an acquittal of the 63. Mays v. State, 51 Tex. Cr. 32, 101 SW 233. [16 C. J.-17] defendant unless it is done wih his consent." Com. v. Hart, 149 Mass. 7, 8, 20 NE 310. [b] In South Carolina (1) under the constitution of 1868 a person could not plead former jeopardy unless he had been acquitted by a jury and a nolle prosequi entered before such an acquittal did not bar another prosecution. State v. Shirer, 20 S. C. 392. (2) Formerly in this state the entry of a nolle prosequi after the jury was charged was a bar to a subsequent prosecution. State v. McKee, 17 S. C. L. 651, 21 AmD 499. (3) And this is also the law under the constitution of 1895. State v. Richardson, 47 S. C. 166, 25 SE 220, 35 LRA 238. [c] Entry of nolle prosequi be-cause of insufficient evidence.-The entry by the prosecuting attorney of a nolle prosequi after the jury are impaneled and the witnesses are sworn, because the evidence is insufficient to convict, is equivalent to an acquittal and will bar a subsequent prosecution for the same offense. S. v. Shoemaker, 27 F. Cas. No. 16,279, 2 McLean 114; State v. Stebbins, 29 Conn. 463, 79 AmD 223; Mount v. State, 14 Oh. 295, 45 AmD 542; State v. Connor, 5 Coldw. (Tenn.) 311. U. [d] Where after conviction and before sentence the indictment was stolen from the files, and a nolle prosequi was entered, it was held that defendant could not be prosecuted again for the same offense. Mount v. State, 14 Oh. 295, 45 AmD 542 [rev 1 Oh. Dec. (Reprint) 89, 2 WestLJ 81]. [e] If a nolle prosequi is entered after verdict and the indictment is sufficient, defendant cannot be indicted again for the same offense. State v. Smith, 67 Me. 328. [f] In Canada (1) it has been held that, in a summary proceeding before a justice, where complainant withdraws the charge after all the evidence has been offered on behalf of the prosecution, the proceeding was a bar to a subsequent prosecution for the same offense. Rex v. Chew Deb, 18 B. C. 23, 9 DomLR 266, 23 WestLR 308. Contra Ex p. Wyman, 34 N. B. 608, 5 CanCrCas 58. (2) But where the complaint is withdrawn after only preliminary evidence has been given, on the ground that it is doubtful whether the magistrate has jurisdiction, and the magistrate gives a certificate which does not amount to a certificate of dismissal, defendant may be tried again for the same offense. erson, 39 N. B. 316. Rex v. Nick 65. Joy V. State, 14 Mount v. State, 14 Oh. 295, 45 AmD Ind. 139; 42; State v. Connor, 5 Coldw. (Tenn.) 311; Elehash v. State, 35 Tex. Cr. 599, 34 SW 928. And see other cases supra notes 61-64. 66. State Miss. v. Kennedy, 96 624, 50 S 978; Coleman v. State, 83 Miss. 290, 35 S 937, 64 LRA 807, 1 AnnCas 406; State v. Champeau, 52 Vt. 313, 36 AmR 754; State v. Roe, 12 Vt. 93. 67. State v. Garvey, 42 Conn. 232; State v. Brackin, 113 La. 879, 37 S 863; State v. Washington, 33 La. Ann. 1473; State v. Brown, 8 Rob. (La.) 566. 68. Peo. v. Pline, 61 Mich. 247, 28 NW 83; State v. Shirer, 20 S. C. 392. |