The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1859-08-03


423, to wit: whether the evidence neces-
sary to support the second indictment
would have been sufficient to prove a
legal conviction on the first indictment,
it seems that at common law a person
charged with felony, as for instance muir.
der, and acquitted, might afterwards be
indicted for such misdemeanor as an
assault, although such assault was in
fact the mortal blow charged in the first
indictment, and given in evidence on the
trial for murder; and that, in such case,
the plea of former acquittal would not be
sufficient But that rule has been chan
ged, and now by statute in England
person indicted for felony may on the
trial be acquitted of the felony and found
guilty ofany assault included in the felony.
See Regina Us Bird and s0ifs, 2 English
La,o and Equity page 42s to 536.
As we do not in this State recognize
the distinction between felonies and mis-.
demeanors as at common law, it follows
that what may be done in that country by
the enabling statutes to which l have al
luded, may be done here without statute,
in the absence of restraining ensctments.
Consequently, party charged in this
State with a crime which at common law
would be felony, may, ordinarily, be &C.
quilted of the principal offence and found
guilty of any offence included in the prin-
cipal one, though misdemeanor at com.
mon law; and in such case an acquittal
for the felony would bar an indictment for
the misdemeanor. But The seth section
of the Crimes Act, although it docs not
recognise the distinction between felonies
and misdemeanors, provides "That in all
trials for murder, the jury before whom
such trial is had, if they find the prisoner
guilty thereof shall ascertain in their
verdict whether it be murder in the first
or second degree, or manslaughter."
An examination of the whole act think
will show that it could never have been
intended by the General Assembly, that on
a trial for murder in the first degree, there
might be conviction for any offence below
manslaughter; and therefore on trial fol
murder in the first degree, verdict for as
sault with intent to murder would, I ap
prehend, be nullity. See Ohio Stat
Reports, pages sS, lO1; Ohio State Re
ports 142. And as, then, Foreman coult
not, on the trial for murder, have beer
found guilty of an assault. it follows b.
the application of the rule recognized il
, Price VS. the State, he cannot set up th
3 acquittal in that case to bar this indict
i ment. I therefore sustain the motion t.
: strike out the plea. At the same time
t confess have doubts whether this deci
r sion is correct; yet if I am in error, an
Il the defendant should be convicted, he ha
!. plain remedy to correct that error
d But if 1 should hold that the plea is goo
o and the defendant should be discharged
J. that decision, however erroneous, coul
e never be corrected.
g The defendant then having excepted
the ruling of the courtpu: in the plea of nc
It guilty, and the jury was called. Two of th
IS regular panel being absent, others were cal
led to supply their places. Prisoners cour
\, sci raised the point that the called juror
+. should be placed on the list in the ordt
: OF the names of those in whose plac,
r they were called. The court decided thi
n the called jurors should be placed at II
ID foot of the list. o,e g v fef
It THOMAS NELSON. of Sunsbury towr
E. ship, was called and examined on his 90
&c dire. He had formed no opinion in r.
ut gard to the guilt or innocence of the pri
% oner. Accepted. ig-E .-tsassa-1
,e THOMAS CoEN, of Malaga TOWNSHIP
,e was of the opinion that Foreman W,
re guilty. He was discharged. and Il
IN court admonished the jurors. in answeriu
D. questions of counsel, to state wheth
&c they had fomed opinions or not but
8, refrain from stating what those opinio
id might be. so sfe -oa saw 5r.5 Fl
i'd GEORGE BENNETT, of Malaga townshi
q. Had at one time expressed an opinio
but now has no bias. Never had su
ut an opinion as to be willing to render
n, verdict upon it. May have q little il
ng preston as to prisoners guilt or inn
cence--would not swear whether ! ha
Id or not. Discharged. .-fia ysg.
Ic- JOHN P. FO0LE, of Malaga townsh
.e. I have formed an opinion, and have
n. opinion now. Discharged. .ysI !.
,ir THos. MARTIN, of Bethel townshi
an Have no opinion except from such tes
Is. mony as have had before me ha'
&C. formed an opinion from reading the Il
NJ; timony, but 1t would not control my ve
"a. dict. Discharged. 7e37 sls 90
: C. w. RDaEwAY. Of Bethel townsh
ow I doa't know that have formed an OPT
re. ion: didn't read all the testimony,
is, can't say positively whether I have ev
,as talked with any one about the credibil
se; of the witnesses to be produced or q,
he Accepted. sre8e .7ea-90 :.
w. JOHN HANNA, of Bethel township.
to never read the testimony. and have for
Try ed no opinion. Nevor talked with q
7as one about the ,credibility of the witness
os- Counsel for the State proposed to cal
ow witness to show that Mr.. Hanna had
ant pressed an opinion as to the credibil
ith of some of the witnesses, but was ov
ruled by the court. Juror accepted.