But the mere silence of a defendant, or his failure 384. 155. Pa-Com. v. Shoemaker, 240 Pa. 255, 87 A 684; Peiffer v. Com., 15 Pa. 468, 53 AmD 605; Com. v. Cook, 6 Serg. & R. 577, 9 AmD 465. S. C.-State v. Coleman, 54 S. C. 282, 32 SE 406. Tex-Arcia v. State, 28 Tex. A. 198, 12 SW 599. Wis.-Oborn v. State, 143 Wis. 249, 126 NW 737, 31 LRANS 966. Eng.-Rex v. Stokes, 6 C. & P. 151, 25 ECL 367; Foster Crown L. p 27; 2 Hawkins P. C. c 47 § 1. But see Rex v. Perkins, Holt K. B. 403, 90 Reprint 1122 (where it is stated that "in a cause tried before Holt C. J. he said, that it was the opinion of all the Judges of England, upon debate between them, that in all capital cases, a juror cannot be withdrawn, though the parties consent to it"). See also Peo. v. Neff, 122 App. Div. 135. 106 NYS 747 [aff 191 N. Y. 210, 83 NE 970] (where after defendant's counsel raised a question as to the jurisdiction of the court but stated that defendant would waive the question, the court discharged the jury and it was held that the proceeding did not constitute jeopardy). [a] Discharge of jury by attorney designated by agreement of the parties to receive the verdict in the judge's absence would be deemed to have been made with defendant's consent. Allen v. State, (Okl. Cr.) 165 P 745. 29, U. S.-Ex p. Glenn, 111 Fed. 257 [rev on other grounds 189 U. S. 506, 23 SCt 851, 47 L. ed. 921]. Fla.-Allen v. State, 52 Fla. 1, 41 S 593, 120 AmSR 188, 10 AnnCas 1085. N. Y.-Peo. v. Warden City Prison, 139 App. Div. 488, 124 NYS 341 [aff 67 Misc. 202, 122 NYS 284, and 202 N. Y. 138, 95 NE 729]. S. C.-State v. Richardson, 47 S. C. 166, 25 SE 220, 35 LRA 238. Tex.-Hipple v. State, (Cr.) 191 SW 1150, LRA1917D 1141. 35 such a case defendant does not waive his rights or consent to the discharge of the juror by asking, after his objection has been overruled, for a new venire, nor by failing to object specifically to the new juror chosen.37 [§ 411] K. Acquittal or Conviction-1. In General. A former conviction or acquittal which may be pleaded in bar is a conviction or acquittal on the merits.38 [412] 2. Acquittal-a. In General. Where a party has once been placed upon trial in a court competent to try an offense of the character charged, and the jury have once rendered a verdict of not guilty as to said offense, no matter how irregular the proceedings have been, the state can never place defendant upon trial again for the same offense.10 So, although the court may have prevented the state from entering a nolle prosequi, or may have misdirected the jury or erred in admitting illegal or in rejecting legal evidence, or the verdict may have been against the evidence, the judgment and verdict of acquittal, if fairly obtained, are conclusive and fence. Long v. State, 46 Ind. 582.15 Hun (N. Y.) 484; Peo. v. FishThere was no objection made by him man, 64 Misc. 256, 119 NYS 89; Peo. to the action of the justice at any v. Goodwin, 18 Johns. (N. Y.) 187, time, nor did he present any objec- 9 AmD 203, 1 Wheel. Cr. 470 note. tion before the trial on the informa39. Cross references: tion afterwards filed against him; on Collusive proceeding see supra § 366. the contrary, he voluntarily, and Construction of verdict on separate without objection, submitted to the counts see infra §§ 434, 2595. empaneling of a jury in the circuit Conviction of lower as acquittal of court and made no reference to the higher degree of offense see infra proceedings before the justice until § 451. after the trial had been entered on, and then relied upon them as evidence entitling him to an acquittal"). [a] Reason for rule.-"Consent 31. Com. v. Shoemaker, 240 Pa. 32. Kingen v. State, 46 Ind. 132. 33. Kingen v. State, 46 Ind. 132. 34. State V. Hazledahl, 2 N. D. 521, 52 NW 315, 16 LRA 150. 35. State v. Pointdexter, 117 La. 380, 41 S 688. 36. O'Brian v. Com., 9 Bush (Ky.) 333, 15 AmR 715 [overr O'Brian v. Com., 6 Rush (Ky.) 563; Tomasson v. State, 112 Tenn. 596, 79 SW 802; De Berry v. State, 99 Tenn. 207, 42 SW 31]. [a] A juror may be discharged for cause before the indictment is read, as up to that time accused has not been in jeopardy. State v. Nash, 46 La. Ann. 194, 14 S 607. 37. Tomasson v. State, 112 Tenn. 596, 79 SW 802. 38. State v. Taylor, 34 La. Ann. But compare Fowler v. State, 85 978; State v. Walters, 16 La. Ann. Ind. 538, 540 (where the court said: 400: State v. Ritchie, 3 La. Ann. "If it should be held that the dis- 715; State v. Hornsby, 8 Rob. (La.) charge of the jury entitled the ap- 583, 41 AmD 314; State v. Brown, 8 pellant to his discharge, it is clear Rob. (La.) 566; Peo. v. Warden City that, as he did not object to the ac- Prison, 202 N. Y. 138, 95 NE 729; tion of the justice, nor move for his Peo. v. Smith, 172 N. Y. 210, 64 NE discharge, but on the contrary ac- 814; Canter v. Peo., 1 Abb. Dec. (N. quiesced in that officer's ruling by Y.) 305, 2 Transcr. A. 1, 5 AbbPrNS demanding of him another jury, he 21, 38 HowPr 91; Peo. v. Meakim, 61 waived his right, if any he had, to afterwards insist that the trial bars another prosecution for the same of Hun 327, 15 NYS 917, 8 N. Y. Cr. 308 [app' dism 133 N. Y. 214, 30 NE Discharge of jury without verdict see supra § 394. Dismissal after swearing jury see supra §§ 391, 394. 40. Ark.-State v. Gooch, 60 Ark. 218, 29 SW 640. Cal.-Peo. v. Webb, 38 Cal. 467. Conn.-Wilson v. State, 24 Conn. 57; State v. Brown, 16 Conn. 54. Ill.-Durham v. Peo., 5 Ill. 172, 39 AmD 407. Ind.-State v. Newkirk, 80 Ind. 131; Dunn v. State, 70 Ind. 47; State v. Davis, 4 Blackf, 345. Ky. Com. v. Goulet, 140 Ky. 843, 132 SW 151; Com. v. Murphy, 109 SW 353, 33 KyL. 141; O'Brian v. Com., 9 Bush 333, 15 AmR 715; Com. v. Daniel, 9 Ky. Op. 96. Me. Stevens v. Fassett, 27 Me. 266. Mass.-Com. v. Squire, 1 Metc. 258. Mich.-Peo. v. Taylor, 117 Mich. 583, 76 NW 158; Peo. v. Cook, 10 Mich. 164. Miss.-State v. Taylor, 23 S 34; Hurt v. State, 25 Miss, 378, 59 AmD 225; Morman v. State, 24 Miss. 54. Mo.-State v. Wisebeck, 139 Mo. 214, 40 SW 946; State v. Spear, 6 Mo. 644; State v. Hall, 141 Mo. A. 701, 125 SW 229. Nev.-State v. Herrick, 3 Nev. 259; State v. Hall, 3 Nev. 172. N. Y.-Hartung v. Peo., 28 N. Y. 400, 26 N. Y. 167, 25 HowPr 221 [rev 23 HowPr 314]; Peo. v. Corning, 2 N. Y. 9, 49 AmD 364; Peo. V. La Scala, 151 App. Div. 518, 135 NYS 959. N. C.-State v. Jesse, 20 N. C. 95. Pa.-Heikes v. Com., 26 Pa. 513; Com. V. Veley, 63 Pa. Super. 489; Com. v. Pflueger, 10 Pa. Dist. 717; Com, v. Bargar, 2 LTNS 161. R. I.-State v. Lee, 10 R. I. 494. Tex. Shoemaker v. State, 58 Tex. Cr. 518, 126 SW 887. Wash.-State v. Hubbell, 18 Wash. 482, 51 P 1039. W. Va.-Ex p. Bornee, 76 W. Va. 360, 85 SE 529, LRA1915F 1093. Wis.-State V. Moon, 41 Wis. 684. Eng.-Rex v. Emden, 9 East 437, 103 Reprint 640; Rex V. Dann, 1 Moody C. C. 424. Ont.-Rex v. Quinn, 11 Ont. L. 242, 6 OntWR 1011. [a] In the Philippines it has been will bar a subsequent prosecution for the same offense.11 Verdict of acquittal rendered on Sunday. An acquittal is not deprived of its effect as a bar by the fact that the verdict was received and the order of discharge entered on Sunday.12 Failure to enter judgment of acquittal. The failure of the clerk to enter judgment on a verdict of acquittal does not affect its validity as a bar to subsequent prosecution.43 [§ 413] b. Acquittal before Justice as Bar to Subsequent Indictment or Information. An acquittal before a justice or a magistrate having jurisdiction to try the case and to impose sentence constitutes jeopardy, and is a bar to a subsequent indictment or information for the same crime,44 but not for another crime of which it forms an ingredient, and of which the justice has no jurisdiction.45 [414] c. Acquittal on Indictment as Bar to Trial before Justice. Although an acquittal on an indictment will not bar a subsequent prosecution before a justice for a minor offense of which defendant could not have been convicted under the indictment, it will bar a subsequent prosecution for the same offense.4 46 47 [§ 415] d. Direction of Acquittal. The direction of an acquittal by the court, however erroneous, bars a subsequent prosecution on the same charge notwithstanding an appeal by the state as authorized by law.48 But where the court erroneously withdraws from the jury all minor offenses included in the offense charged, defendant is not placed in jeopardy as to such minor offenses.49 held that, where a prosecution for infringement of literary property is dismissed and defendant is discharged after the prosecution has closed its case on the ground that there is no copyright law in the Philippines, defendant cannot be tried again for the same offense even if the ruling of the trial judge in discharging defendant and dismissing the information was erroneous. U. S. v. Yam Tong Way, 21 Philippine 67. But compare Copyright and Literary Property § 75. Insufficient indictment or information see supra § 376 et seq. 41. Cal.-Peo. v. Terrill, 132 Cal. 497, 64 P 894. Ind.-State V. Davis, 4 Blackf. 345. Ky. Com. v. Ball, 126 Ky. 542, 104 SW 325, 31 KyL 887. Miss.-State v. Taylor, 23 S 34. Mo.-State v. Casey, 207 Mo. 1, 105 SW 645, 123 AmSR 367, 13 Ann Cas 878. 40. supra note And see other cases [a] An actual acquittal, although upon improper ground raised by defense, is a former jeopardy and a bar to further prosecution. Com. v. Ball, 126 Ky. 542, 104 SW 325, 31 KyL 887 (where the court said: "The guaranty that a person shall not be put twice in jeopardy would amount to but little if he could be tried a second time wherever his acquittal was due to an error of the court committed upon his motion"). The minutes of a court of [b] record showing an acquittal of the crime, when in fact there had been a mistrial, are conclusive. State V. Taylor, (Miss.) 23 S 34. 42. Ball v. U. S., 163 U. S. 662, 16 SCt 1192, 41 L. ed. 300. 43. Ball v. U. S., 163 U. S. 662, 16 SCt 1192, 41 L. ed. 300; Wright v. Fansler, 90 Ind. 492; State v. Norvell, 2 Yerg. (Tenn.) 24, 24 AmD 458. 44. Ind. Brackney v. State, 106 NE 532. Acquittal directed at defendant's request. So where a verdict of acquittal is directed at the request of the defendant, upon the ground that the indictment is fatally defective, defendant cannot, on again being prosecuted, claim that the former indietment was in fact good and that he has been in jeopardy under it.50 [416] e. Acquittal by Jury. Acquittal by a jury is not usually requisite to constitute former jeopardy, but under a constitutional provision that no person shall be put in jeopardy a second time after having been once acquitted by a jury" the immunity extends only to those who have been so acquitted.51 [417] f. Appeal from Acquittal52 Where, by statute, the state is entitled to an appeal which does not reverse the judgment, but is merely to obtain a correct exposition of the law, the prosecution cannot, after appealing from an acquittal before a justice, compel accused to stand a second trial.53 Where imprisonment is not a part of the punishment and only a fine can be assessed, it has been held that a reversal for a new trial may be had either for the state or for the defendant.54 In civil actions for the recovery of penalties, and in some cases where the form of proceeding is criminal, if the object is only to establish a civil right, as in cases of quo warranto, etc., new trials may be granted on the application of the prosecutor.55 [§ 418] 3. Conviction-a. Under Defective Complaint. A conviction before a justice of the peace having jurisdiction is a bar to an indictment, Cunningham, 13 Mass.-Com. V. N. C.-State v. Bowers, 94 N. C. 910. Pa. -Com. v. Ruth, 17 Pa. Dist. 860, 34 Pa. Co. 650; Com. v. Robbins, 35 Pa. Co. 479. S. V. Parcon, 6 Philippine.-U. [a] An acquittal by a de facto justice will bar a subsequent prosecution. Ex p. Simmons, 34 Nev. 493, 125 P 697. [b] In England it has been held that, where a summons in a prosecution based on an alleged sale of milk in violation of the Food and Drugs Act of 1899 is dismissed on the day set for the hearing because no certificate of analysis was served with the summons, defendant cannot be tried again for the offense where he pleads autrefois acquit. Haynes v. Davis, [1915] 1 K. B. 332. same 45. State v. Nichols, 38 Ark. 550; White v. State, 9 Tex. A. 390. 46. State v. Wightman, 26 Mo. 515. 47. Ark.-State v. Haller, 119 Ark. 503, 177 SW 1138. [a] Thus where, after introduction of evidence by the people, a verdict of not guilty is rendered at the "command" of the court, defendant cannot be tried again for the same offense, although the court was authorized only to "advise" such a verdict. Peo. v. Roberts, 114 Cal. 67, 45 P 1016. [b] Refusal of prosecution to introduce evidence. A directed verdict of acquittal after overruling the commonwealth's motion for a continuance and after the prosecuting attorney has declined to introduce any evidence is a bar to another prosecution for the same offense. Com. v. Adkins, 171 Ky. 299, 188 SW 401. 48. Com. v. Murphy, 109 SW 353, 33 KyL 141. 49. Montgomery v. State, 136 Wis. 119, 116 NW 876, 18 LRANS 339. 50. State v. Sherman, 71 Ark. 349, 74 SW 293; State v. Meekins, 41 La. Ann. 543, 6 S 822; Peo. v. Meakim, 61 Hun 327, 15 NYS 917, 8 N. Y. Cr. 308 [aff 133 N. Y. 214, 30 NE 828, 8 N. Y. Cr. 404]. 51. State v. Shirer, 20 S. C. 392. 52. Right of prosecution to appeal see infra § 3310. 53. State v. Van Horton, 26 Iowa 402, 406 (where it was said: "We do not say that the State may not under this statute, and perhaps oth Cal-Peo. v. Hill, 146 Cal. 145, 79 P 845; Peo. v. Horn, 70 Cal. 17, 11 Pers, take steps to have the erroneous 470; Peo. v. Webb, 38 Cal. 467. D. C.-Nordlinger v. U. S., 24 App. 406, 70 LRA 227. Ga.-Black v. State, 36 Ga. 447, 91 AmD 772. Ind. State v. Davis, 4 Blackf. 345. Ky. Com. v. Adkins, 171 Ky. 299, 188 SW 401; Com. v. Goulet, 140 Ky. 843, 132 SW 151; Com. v. Little, 140 Ky. 550, 131 SW 387; Com. v. Murphy. 109 SW 353, 33 KyL 141. N. Y.-Peo. v. Goldfarb, 152 App. Div. 870, 138 NYS 62 [aff 213 N. Y. 664 mem, 107 NE 1083 mem]. Okl.-Ex p. Harris, 8 Okl. Cr. 397, 128 P 156. rulings of these inferior tribunals corrected precisely as in this court it may have reviewed those made by the District Court. What we hold is, that, where the accused after trial upon the merits has been acquitted before the justice, the state cannot, upon appeal, compel him to stand a second trial"). 54. Fenix v. State, 90 Ark. 589, 120 SW 388; Taylor v. State, 36 Ark. 84; State V. Czarnikow, 20 Ark. 160; Jones v. State, 15 Ark. 261; Com. v. Keathly, 82 SW 1001, 232, 26 KyL 992, 493. 55. State v. Brown, 16 Conn. 54. although the proceedings before him were so defective or irregular that they might have been set aside for error.56 [§ 419] b. In Court of Limited Jurisdiction. A plea of former conviction to an indictment in a court of general jurisdiction is sustained by proving a conviction in a court of limited jurisdiction upon a prosecution instituted and carried through in good faith,57 unless the indictment was found prior to the prosecution in the lower court and defendant had been arrested under it.58 But a conviction before a justice of the peace will not bar a trial on appeal to a higher court whether the trial is on the original affidavit, information, or indictment,59 or on an amended one.60 And if a statute provides that a conviction in a court of limited jurisdiction shall be a bar in any court of similar jurisdiction, the conviction is by implication no bar to a subsequent indictment.61 [420] c. Necessity for and Effect of Judgment. It has been held 62 and also has been denied 63 that a former conviction cannot be pleaded in bar unless it has been followed by a judgment. [421] d. Conviction of Another Person for Same Offense. It is well settled that the conviction of another person for the same offense cannot be pleaded or offered in evidence as a bar to a prosecution.64 Thus the conviction of an employer for selling intoxicating liquors is no bar to a subsequent indictment of his employe for the same crime. Nor is a conviction of either a husband or a wife for selling liquor a bar to the conviction of the other for the same crime, although the same testimony proves both crimes." 66 65 [422] L. Discharge-1. For Failure to Prosecute. At common law, and in the absence of special statutes of limitations, the mere failure to find an indictment will not operate to discharge accused from the offense,67 nor will a nolle prosequi entered by the government or the failure of the grand jury to indict.68 In several states, however, there are statutes limiting the time within which persons charged with crime must be brought to trial. Whether the failure to bring to trial within the time limited will have the effect of discharging accused from further prosecution for the crime or offense, or will operate merely to put an end to the pending prosecution, depends upon the terms. used in the different statutes.69 Generally speaking, where the statute has provided that the discharge shall be from imprisonment or bail, without other language, it has been held not to operate as a statute of limitations barring a subsequent indictment.70 On the other hand, where the statute has provided that the failure to prosecute shall discharge accused, so far as relates to the offense or from the crime, or that he shall be acquitted of the offense charged in the indictment, failure to prosecute has been held to work a final discharge of the offense."1 But a discharge for such reason does not bar a further trial for other crimes, although growing out of the same transaction, for which defendant was not in peril of conviction under the first indictment.72 [423] 2. Under Habeas Corpus Proceedings.73 A discharge on habeas corpus, being merely from custody and not from the penalty, does not operate as an acquittal, and is not a bar to a subsequent indictment, whether accused has undergone any 74 56. State v. George, 53 Ind. 434; | 470; Com. v. Lahy, 8 Gray (Mass.) | 580, 55 SE 487; Brown v. State, 85 Ga. Fritz v. State, 40 Ind. 18; Com. v. 459; Com. v. Roby, 12 Pick. (Mass.) Loud, 3 Metc. (Mass.) 328, 37 AmD 496. 139; Henry v. State, 97 Miss. 787, 790, 53 S 397 [cit Cyc]. Defective indictment or information see supra § 376. 57. Ind.-Bryant v. State, 72 Ind. 400. Ky. Com. v. Miller, 5 Dana 320; Offutt v. Com., 3 KyL 333. Mass.-Com. v. Goddard, 13 Mass. 455; Com. v. Sheldon, 6 Dane Abr. 731. N. C.-State v. Dockery, 171 N. C. 828, 89 SE 36. Tenn.-State v. Layne, 96 Tenn. 668, 36 SW 390; McGinnis v. State, 9 Humphr. 43, 49 AmD 697. Tex.-Dunn v. State, 6 Tex. 542. 446. Fraudulent or collusive prosecution see supra § 366. 58. Mize V. State, 49 Ga. 375; State v. Casey, 44 N. C. 209; State v. Tisdale, 19 N. C. 159. 59. State v. Curtis, 29 Kan. 384. 60. Malone v. State, 170 Ind. 184, 100 NE 567. 61. Williams v. State, 63 Ark. 307, 38 SW 337. 62. U. S. v. Herbert, 26 F. Cas. No. 15,354, 5 Cranch C. C. 87; State v. Isaac, 3 La. Ann. 359; White v. State, 13 Oh. St. 569; State v. Layne, 96 Tenn. 668, 36 SW 390. 63. Ill. Brennan v. Peo., 15 Ill. Ky.-Raley v. Com., 9 Ky. Op. 189. N. Y.-Peo. v. McGrath, 202 N. Y. Wis.-State v. Parish, 43 Wis. 395. 66. Com. v. Heffron, 102 Mass. 148; 67. U. S. v. Cadarr, 197 U. S. 475, 68. U. S. v. Cadarr, 197 U. S. 475, 25 SCt 487, 49 L. ed. 842, 3 AnnCas 1057. 70. U. S.-U. S. v. Cadarr, 197 U. S. 475, 25 SCt 487, 49 L. ed. 842, 3 AnnCas 1057 [rev 24 App. (D. C.) 143]. 713, 11 SE 831; Holt v. State, 38 Ga. 187; Jordan v. State, 18 Ga. 532; Kerese v. State, 10 Ga. 95; Durham v. State, 9 Ga. 306; Denny v. State, 6 Ga. 491. Ill-Newlin v. Peo., 221 Ill. 166; 77 NE 529. Ind.-McGuire v. Wallace, 109 Ind. 284, 10 NE 111. Kan.-State v. Dewey, 73 Kan. 735, 85 P 796, 88 P 881. Mo.-State v. Wear, 145 Mo. 162, 46 SW 1099. Oh.-Johnson v. State, 42 Oh. St. 207; Erwin v. State, 29 Oh. St. 186, 23 AmR 733; Ex p. McGehan, 22 Oh, St. 442. Va.-Benton v. Com., 91 Va. 782, 21 SE 495: Nicholas v. Com., 91 Va, 741, 21 SE 364; Com. v. Adcock, 8 Gratt. (49 Va.) 681; Wortham v. Com., 5 Rand. (26 Va.) 669. See also Hester v. Com., 85 Pa. 139, 153 (where the court said: "But the facts presented do not call for an inquiry into the effect upon the after liability to arrest and punishment of a prisoner in whose behalf the statutory provision may have been applied. Here, the record did not show a discharge under the two-term rule"). [a] Where one accused of a violation of a municipal ordinance, which was also a violation of the state law, was discharged because limitations had run, he cannot plead that discharge as a conviction barring prosecution under the state law. Birmingham v. Brown, 13 Ala. A. 654, 69 S 263. 72. Nagel v. Peo., 229 Ill. 598, 82 NE 315. [a] In Massachusetts (1) a ver- 69. U. S. v. Cadarr, 197 U. S. 475, dict of guilty on an indictment upon 25 SCt 487, 49 L. ed. 482, 3 AnnCas which no judgment has been ren- 1057. dered, and to the rulings at the trial of which exceptions are still pending, is no bar to a complaint for the same offense. Com. v. Fraher, 126 Mass. 265. (2) But it is an open question, it seems, whether a verdict of guilty, rendered upon a good indictment, and which has not been set aside, will or will not, before judgment, support a plea of autrefois convict. Com. V. Pa.-Com. v. Kulp, 17 Pa. Dist. 862, Lockwood, 109 Mass. 323, 12 AmR | 34 Pa. Co. 652. 699; Com. v. Harris, 8 Gray (Mass.) 71. Ga.-Dublin v. State, 126 Ga. |P 23. Colo. In re Garvey, 7 Colo. 502, 4 Miss.-Byrd v. State, 2 Miss. 163. 73. Effect of discharge on habeas corpus generally see Habeas Corpus [21 Cyc 349]. 74. Cal. In re Begerow, 136 Cal. 293, 68 P 773, 56 LRA 528. Il-Walker v. Martin, 43 Ill. 508. Kan.-In re Clyne, 52 Kan. 441, 35 part of the punishment imposed or not.75 The resentencing of a prisoner duly convicted of a crime, who has obtained his discharge on habeas corpus, is not subject to the objection that defendant is put in jeopardy twice for the same offense.76 [§ 424] 3. For Lack of Jurisdiction. A discharge on an objection that the court has no jurisdiction is of course insufficient to support a plea of former jeopardy." [425] 4. To Try on Another Complaint. The discharge of a prisoner by the judge of a police court, after the trial is partly concluded, because he desires to try him on another complaint, is an acquittal.78 [§ 426] 5. To Use as State's Witness. A discharge of a codefendant for the purpose of using him as a state's witness amounts to an acquittal and bars another prosecution.79 [§ 427] 6. After Conviction without Judgment. The plea of prior conviction is good where, after a verdict of guilty, exceptions are filed and the case is continued, and after the expiration of the term the indictment is dismissed and defendant is discharged without day.s 80 N. Y.-Sutton v. Butler, 74 Misc. 251, 252, 133 NYS 936 [quot Cyc]. Oh.-Ex p. McKnight, 4 OhS&CP 284, 3 OhNP 255. be set aside by the court may be tried anew upon A motion to correct an invalid judgment is tantamount to a motion to set it aside and is a waiver of objection to another jeopardy.87 Where [§ 429] 2. For Lack of Jurisdiction. judgment is arrested at the prisoner's instance upon that no person tried for crime shall be liable to be afterward prosecuted for other offense on the same facts, unless the trial court discharges the jury from giving verdict and directs defendant to be indicted for the offense shown to have been committed, has application only to cases where the verdict has not been set aside at accused's own instance. State V. McGarrity, 140 La. 436, 73 S 259. [428] M. Verdict Set Aside or Judgment Arrested81-1. In General. It is an established principle of law that a defendant in a criminal case who procures a verdict and judgment against him to Mo.-State v. Schierhoff, 103 Mo. | tence seize upon the fact of his hav47, 15 SW 151. ing done so as an excuse or reason for being relieved from a lawful sentence imposed in a manner conforming to law under an orderly procedure and administration of the law, and thus defeat the ends of justice by escaping the legal punishment for his crime, when he may have, perhaps, for this very purpose, voluntarily served but a day of the void sentence which was, at the same term of court so corrected as to require the imposition of a lawful sentence"). R. I-State v. Deslovers, 100 A 64. S. C.-State v. Fley, 4 S. C. L. 338, 4 AmD 583. Tex.-Marshall v. State, 73 Tex. Cr. 531, 166 SW 722, LRA1915A 526 (discharge on habeas corpus under void judgment). Wis.-Ex p. Booth, 3 Wis. 145. See also Rex v. Dick, 15 Que. Pr. 202, 15 Dom LR 330. Contra Com. v. McBride, 2 Brewst. (Pa.) 545. [a] In 77. Duffy v. Britton, 48 N. J. L. 371, 7 A 679; Marshall v. Com., 20 Gratt. (61 Va.) 845. See supra § 371 et seq. Alabama Code (1907) [a] Mistake in discharge of jury. 7035, prohibiting reimprisonment-But where a jury is discharged on where one has been discharged on a mistaken supposition that the evihabeas corpus, applies only to a legal dence shows that the crime was comjudgment, not to a void one which mitted in another county, and the can be collaterally attacked. State prisoner is committed, it amounts to v. Gunter, 11 Ala. A. 679, 66 S 846; an acquittal, and he cannot be tried State v. Gunter, 11 Ala. A. 399, 66 S again. State v. Spayde, 110 Iowa 726, 844. 80 NW 1058. 75. Marshall v. State, 73 Tex. Cr. 531, 166 SW 722, LRA1915A 526; Ogle v. State, 43 Tex. Cr. 219, 63 SW 1009, 96 AmSR 860. 78. Com, v. Hart, 149 Mass. 7, 20 NE 310; Peo. v. Goldfarb, 152 App. Div. 870, 138 NYS 62 [aff 213 N. Y. 664 mem, 107 NE 1083 mem]. 79. Peo. v. Bruzzo, 24 Cal. 41. 81. Cross references: 82. U. S.--Murphy V. Massachu- 83. Peo. v. McGrath, 202 N. Y. 445, 96 NE 92. [a] Withdrawal of motion to set aside, verdict.-Where counsel for defendant who was convicted of murder in the second degree on the trial of an indictment for murder in the first degree moved to set aside the verdict, and before the court had passed on the motion endeavored to withdraw it but the court refused to hear him and granted the motion, it was held that there was in effect a withdrawal of the motion, and that defendant could not be tried again for murder in the first degree. Peo. v. McGrath, 202 N. Y. 445, 96 NE 92. 84. State v. Snyder, 98 Mo. 555, 12 SW 369; Ex p. Snyder, 29 Mo. A. 256; State v. Adams, 11 S. D. 431, 78 NW 353. [a] Thus, where the court on its own motion arrests judgment, because from the evidence it appears that there is a material variance, a plea of former jeopardy should be sustained upon a subsequent prosecution for the same offense. State v. Adams, 11 S. D. 431, 78 NW 353. 85. State V. Norvell, 2 Yerg. (Tenn.) 24, 24 AmD 458; State v. Parish, 43 Wis. 395. 86. Cal.-Peo. v. Ham Tong, 155 Cal. 579, 102 Р 263, 24 LRANS 481. 76. Bryant v. U. S., 214 Fed. 51, 130 CCA 491; State v. Gunter, 11 Ala. A. 679, 66 S 846; State v. Gunter, 11 Ala. A. 399, 404, 66 S 844 [certiorari den 69 S 442] (where the court said: "The sentence imposing imprisonment in the penitentiary is admitted by brief filed by counsel for respondent to be void. Certainly this sentence cannot, at the option of the prisoner, be treated as valid for the purpose of preventing the imposition of another sentence and, at the same time, as void for the purpose of securing a discharge from any restraint under it. Being void, the sentence was nothing which the law can recognize, the same as no sentence at all, and the prisoner cannot, by acquiescing in it, charged with the knowledge of its nullity, and commencing service under it, deprive the court of the right during that same term, while the judgment was still in the breast of the court and the case within its control, to modify the Pa.-Com. V. Endrukat, 231 Pa. 351. judgment so as to provide for a pun- 529, 80 A 1049, 35 LRANS 470. ishment in conformity with the law. Tex.-Marshall v. State, 73 Tex. Cr. Nor can a defendant, by sub-531, 166 SW 722, LRA1915A 526. mitting to an unlawful, void sen- [a] La. Rev. St. § 1055, providing Ala. Booker v. State, 151 Ala. 97, 44 S 56; State v. McFarland, 121 Ala. 45, 25 S 625. Alaska.-U. S. v. Owens, 2 Alaska 480. Ark. Floyd v. State, 80 Ark. 94, 96 SW 125. Ga. Taylor v. State, 110 Ga. 150, 35 SE 161. Mass.-Com. v. Brown, 167 Mass. 144, 45 NE 1. Colo.-Young v. Peo., 54 Colo. 293, 130 P 1011. Fla.-Gibson v. State, 26 Fla. 109, 7 S 376. Ill.-Gerard v. Peo., 4 Ill. 362; Peo. v. Zlotincke, 152 Ill. A. 363 [rev on other grounds 246 Ill. 185, 92 NE 813]. Ind.-Joy v. State, 14 Ind. 139. Tex.-Brown v. State, 43 Tex. Cr. 272, 64 SW 1056. 87. Sterling v. State, 25 Tex. A. 716, 9 SW 45, 8 AmSR 452. the ground that there is no jurisdiction, there is no jeopardy, and accused may be tried again on the same indictment.88 [430] 3. For Defect in Indictment or Information. When accused in a criminal case makes a motion in arrest of judgment upon the ground that the indictment is defective, and this motion is sustained, he will not thereafter be heard to allege that the indictment was in fact good and that he was in jeopardy thereunder;89 and this is true without reference to whether the indictment was in fact good or bad in substance.90 Since a verdict of guilty on one count only, where the indictment contains several counts, operates as an acquittal as to the others,91 if the judgment is arrested on account of the insufficiency of that count, a new indictment can be preferred only for the offense therein charged."2 [431] 4. For Illegal Verdict. A plea of former jeopardy cannot be sustained on proof that the conviction of accused on the former trial was set aside by the trial court because of a void or an illegal verdiet.93 But where defendant is convicted under a void verdict, and makes a motion to be discharged after the verdict has been received and recorded, he has been placed in jeopardy and is entitled to such discharge." 94 Where a new trial is granted on motion of defendant, and the verdict and conviction are set aside, defendant has thereby waived his right and is estopped to plead the former conviction as a bar to another trial on the same or a new indictment.95 But this rule applies only where there has been a conviction.96 Where a verdict is in legal effect an acquittal, accused cannot be tried again for the same offense, even though a new trial is granted upon his own motion.97 In such a case the motion for a new trial is itself a nullity, and everything that transpires after the verdict of acquittal is returned is nugatory and void.98 [433] b. Where Verdict Acquits in Part and Convicts in Part. Where an indictment contains several counts charging different offenses, and defendant is acquitted under some counts and convicted under others, and a new trial is granted on his application, he cannot be put on trial again for the offenses charged in the counts on which an acquittal was had.99 Same offense charged in several counts. But where an indictment is for but one offense, although charged in several counts in different ways, and defendant is convicted upon some of the counts and acquitted upon others, the granting of a new trial upon this motion opens the case for retrial upon the Va.-Jones v. Com., 20 Gratt (61 | 400. Va.) 848. [432] 5. Grant of New Trial-a. In General. 88. Small v. State, 63 Ga. 386. 89. U. S.-U. S. v. Martin, 28 Fed. 812. Ala.-State v. Phil, 1 Stew. 31. Cal-Peo. v. Tong, 155 Cal. 579, 102 P 263, 132 AmSR 110, 24 LRANS 481; Peo. v. Eppinger, 109 Cal. 294, 41 P 1037. Ga. Hill v. Nelms, 122 Ga. 572, 50 SE 344; Conley v. State, 85 Ga. 348, 11 SE 659. Ill-Gannon v. Peo., 127 Ill. 507, 21 NE 525, 11 AmSR 147; Bedee v. Peo., 73 Ill. 320. Ky. Cornelius v. Com., 3 Metc. 481. La-State v. Foley, 114 La. 412, 415, 38 S 402 [cit Cyc]; State v. Victor, 36 La. Ann. 978; State v. Owens, 28 La. Ann. 5. Mass.-Com. v. Gould, 12 Gray 171; Mo.-State v. Owen, 78 Mo. 367. H. 535. N. Y.-Peo. v. Loomis, 30 HowPr 323; Peo. v. Casborus, 13 Johns. 351. Pa. Com. v. Huffman, Add. 140. R. I-State v. Watson, 20 R. I. 354, 39 A 193, 78 AmSR 871 [aff 179 U. S. 679, 21 SCt 915, 45 L. ed. 383]. Tex.-Brown v. State, 43 Tex. Cr. 272, 64 SW 1056. Va.-White v. Com., 79 Va. 611. 90. Hill v. Nelms, 122 Ga. 572, 50 SE 344. 91. 2595. See supra § 393; infra §§ 434, 92. May v. State, 55 Ala. 164. 93. Ala-Kendall v. State, 65 Ala. 492. Ariz.-Kimball v. Terr., 13 Ariz. 310, 115 P 70. Cal.-Peo. v. Tong, 155 Cal. 579, 583, 102 P 263, 132 AmSR 110, 24 LRANS 481 [cit Cyc]. Colo-Mahany v. Peo., 31 Colo. 365, 73 P 26. Ill-Hudson v. Peo., 29 Ill. A. 454. 329. La-State v. Benjamin, 45 La. Ann. 1281, 14 S 71; State v. Oliver, 39 La. Ann, 470, 2 S 194. N. H.-State v. Blaisdell, 59 N. H. 328. Tenn.-Waddle v. State, 112 Tenn. 556, 82 SW 827; Fitts v. State, 102 Tenn. 141, 50 SW 756. Tex.-Garza v. State, 39 Tex. Cr. 358, 46 SW 242, 73 AmSR 927; Sterling v. State, 25 Tex. A, 716, 9 SW 45, 8 AmSR 452. [a] Illustrations. (1) A verdict fixing a punishment in excess of the maximum prescribed by the statute, and for that reason set aside as a nullity, cannot be interposed successfully to prevent another trial and further prosecution of the case. Fitts v. State, 102 Tenn. 141, 50 SW 756. (2) While a verdict finding defendant guilty of murder, and not specifying the degree, is erroneous and cause for reversal, it is not absolutely void, and defendant is not again put in jeopardy by being subjected to a second trial after the verdict is set aside for such irregularity. Waddle v. State, 112 Tenn. 556, 82 SW 827; Garza v. State, 39, Tex. Cr. 358, 46 SW 242, 73 AmSR 927. (3) Where a verdict of guilty of manslaughter was void because failing to designate whether it was voluntary or involuntary, as required by statute, but defendant made no objection to the discharge of the jury, merely excepting to the verdict in the usual form, he consented to the discharge of the jury, SO that he could not plead former jeopardy on a subsequent trial for the same offense. Mahany v. Peo., 31 Colo. 365, 73 P 26. 94. Peo. v. Small, 1 Cal. A. 320, 82 P 87. 95. U. S.-U. S., v. Ball, 163 U. S. 662, 16 SCt 1192, 14 L. ed. 300; U. S. v. Gonzales, 206 Fed. 239. Ala.-Booker v. State, 151 Ala. 97, 44 S 56; State v. McFarland, 121 Ala. 45, 25 S 625. Cal.-Peo. v. Tong, 155 Cal. 579. 102 P_263, 132 AmSR 110, 24 LRANS 481; Peo. v. Mooney, 132 Cal. 13, 63 P 1070. Canal Zone.-Canal Zone v. Clark, 1 Canal Zone 128, 129 [quot Cyc]. Ga.-Brantley v. State, 132 Ga. 573, Il-Gerard v. Peo., 4 Ill. 362. Ky.-Ward v. Com., 128 SW 72; La.-State v. Walters, 16 La. Ann. Mass.-Com. v. Brown, 167 Mass. 144, 45 NE 1. Mich.-Peo. v. Murray, 89 Mich. 276, 50 NW 995, 28 AmSR 294, 14 LRA 809. Mo.-State v. Snyder, 98 Mo. 555, 12 SW 369. N. Y.-Peo. v. Cignarale, 110 N. Y. 23, 17 NE 135, 6 N. Y. Cr. 82; Peo. v. Dowling, 84 N. Y. 478; Peo. v. Shields, 34 Misc. 256, 69 NYS 620; Peo. v. McKay, 18 Johns. 212; Peo. v. Casborus, 13 Johns. 351. N. C.-State v. Lee, 114 N. C. 844, 19 SE 375. Okl.-Bonham v. State, 6 Okl. Cr. 230, 118 P 149. Pa.-Com. v. Lutz, 200 Pa. 226, 49 A 771. S. C.-State v. Hamilton, 80 S. C. 435, 61 SE 965, 128 AmSR 881; State v. Gillis, 73 S. C. 318, 53 SE 487, 114 AmSR 95, 5 LRANS 571, 6 AnnCas 993; State v. Stephens, 13 S. C. 285. Tenn.-State v. Hays, 2 Lea 156. Tex.-Maines v. State, 37 Tex. Cr. 617, 40 SW 490; Dubose v. State, 13 Tex. A. 418. Va.-Briggs v. Com., 82 Va, 554. W. Va.-State v. Cross, 44 W. Va. 315, 29 SE 527. Wis. In re Keenan, 7 Wis. 695. [a] Where a verdict of manslaughter is received in the absence of defendant, an order granting a new trial does not violate Const. art 1 § 2, providing that no person shall be twice put in jeopardy of life or limb for the same offense. Com. v. Gabor, 209 Pa. 201, 58 A 278. 96. Ezzard v. State, 11 Ga. A. 30, 74 SE 551. 97. Register v. State, 12 Ga. A. 1, 76 SE 649; Ezzard v. State, 11 Ga. A. 30, 74 SE 551. 98. Register v. State, 12 Ga. A. 1, 76 SE 649; Ezzard v. State, 11 Ga. A. 30, 74 SE 551. 99. Ala.-Bell v. State, 48 Ala. 684, 17 AmR 40; Fisher v. State, 46 Ala. 717. Mo.-State v. Hall, 141 Mo. A. 701, 125 SW 229. Nebr.-George v. State, 59 Nebr. 163, 80 NW 486; Bohanan v. State, 18 Nebr. 57, 24 NW 390, 53 AmR 791. N. Y.-Peo. v. Dowling, 84 N. Y 478. Oh.-State v. Behimer, 20 Oh. St. 572; Lesslie v. State, 18 Oh. St. 390. Tenn.-Campbell v. State, 9 Yerg. 333, 30 AmD 417. Va.-Stuart v. Com., 28 Gratt. (69 |