The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-05-17

the opinion of the court shows thar /
point now under consideration. was !
made
IL was insisted for the defendant d. Z
that the verdict of manslauphter is am
quittal of the charge Of murder, and
n the statute OF limitation will bar anoth
n Indictment, for manslaughter merely, 4
J. prisoner should be discharged.
, The Attorney General replied. eth
= the reversal of the judgment on the vt
1 dict OF manslaughter annuls the who
4 proceedings upon the trial below. as we
r for, as against the prisoner, and that Il
/ Indictment having been avoided by Il
pleas in abatement, he can be again il
= dlcted for the crime of murder"
The Attorney General, does not preser
the point now uEder consideration. ths
the indictment and whole proceedings an
void, but urges that the reversal of tn
Judgment, of the court below. overrulin
the defendants plea in abatement show
ing the illegal organization of the gran,
jury, annulled the whole proceeding be
low both as TO the acquittal of murder
and the conviction for manslaughter. II,
did not assume that the Whole proceeding
was void but reversed.
What does the court say immediatel,
following this statement, made by itself d
the respective positions of the counsel fol
the State and for the accused.
"A verdict of jury finding a party
| put upon his trial for murder, guilty OF
manslaughter in the third degree. must OF
necessity, operate as an aequittal of every
crime OF a higher grade of which he
might have been convicted, under the in
dlctment upon which theissue was made /"
II then on the face of the record it ap-
pears, that the indictment is void. and
consequently that no legal conviction
could be had upon it by the rule establish
ed by the court in Hursts case, there
could be no legal acquittal or conviction.
The court then proceeds to discuss the
effect of the reversal of the conviction for
manslaughter, and to show, that it only
annulled that judgment. That in effect
there were two verdicts and two judg-
ments ~ the conFt healoWs ann verdict
OF cOuId De Prosecuted, under our system,
the other a verdict of guilty Of man
and Judgment thereon, from
which the defendant, alone, could prose-
cute a writ of error "The judgment OF
reversal could extend only TO such judg
ment and matters as the writ of error
brought to our consideration. A iudg
ment acquitting the party of murder, not
being one which could be embraced in his
writ of error, for the same reason could
not be embraced in our judgment"
Hence, it stands unaffected by our action,
as the judgment of the court below on
the charge of muder. 1t may be true that
no formal judgment of acquital was en-
tered, but we hold that the sentence of
the court upon the verdict of manslaugh-
ter, was of itself, a complete acquittal of
all higher crimes of which the party
might have Been convicted under the in
dietment. And for this the court cites
the case of Slaughter vs.. The State, g,
bump. =. 4l0, where that court relying
upon the previous case of The State vs..
Norrel ,, Yerger r. 30, state the rule to be
that verdict of acquittal upon good
Indictment, is a bar under our Constitu-
ton to any subsequent trial, for an Of
fence affecting life or limb although no
judgment was ever entered.
In further discussing the case of Hurst
VS.. The State, it is obvious that the court
intended to confine itself to indictments,
which on the record were at least Irimd
facia legal though voidable upon plea of
abatement as was the case before il. The
case of a void indictment is expressly
pretermitted by the language used, On
this subject the court says, 1T is not ne
oessary that we should go into an exam
inatlon Of the principles involved in the
other question made by the Attorney
General" 1t may be admitted for the
sake of the argument, that the indict-
ment was voidable, and still under the re
cord the prisoner would be entitled to his
discharge. The indictment purports to
have been found by grand jury organ
ized by the court. The record shows that
the prisoner was arraigued and regularly
tried upon the charge therein contained,
and that he was acquitted of the charge Of
murder upon the facts and testimony in
troduced before the jury. The statute is
decisive of the question, and was no
doubt enacted to relieve against such ca
ses. 1t Is in these words, to-wit: mo
person shall be held to answer on a sec
ond Indictment, for any offence of which
he has been acquitted by the jury upon
the facts and merits on a former trial;
but such acquittal may be pleaded by him
in bar Of any subsequent prosecution for
the same offence. notwithstanding any
defects in the form or the substance Of
the Indictment on which he was acquit-
ted" How. & Hut. p. Goo; S. 5, ID.
rs. S. %.
The -. sta.iate1tl 6sEs 'RFRaF question ~
Whether a prisoner "arraigned and regu
-. - tied " and, acquitted ofthe charge |
Of murder upon the facts and testimony /
introduced before the Jury" under a |
FDtAAAAE AnaAAIkAlANlAbs WsA7 @AAAAAAGAA ~ 10 i
when the judgment for man |
slaughter had been arrested, and that Of |
fence barred by the statute Of limitations. /
In such case, the court says "tbe party 1
has gone through the legal form Of a 4
trial. and has by it established his inno- |
senee, and hence the wisdom Of the stat
ute, in providing for such cases, ''ca-
sezD where there was an indictment, /
however, irregular or ''viodable." But /
certainly neither this decision, nor the act /
of the Legislature just quoted were ever /
designed to apply 70 a case where IN Law,
here was DO grand jury, no Indictment, /
20 accusation. no power or authority TO 4
lrrest. arraigD, try, convict or acquit. and /
hence no jeopardy Of life or limb
Both the decision and the statute had 4
reference 10 that class Of cases, where the
defendant waving, perhaps scorning the
Of technical or even substan-
.ial defects in the record or Indictment
hoses TO rely on the facts and merits OF
bis case for acquittal, rather than avail /
himself Of the dement's Of the officers Of
.he law. In such case, however erron-
sous or vOidable. might be the proceed
n rs against him. justice and good faith
.anction the rule and the statute, which
seals his acguittal- II has relation 70
defects IN the form Of substrnce Of the
Indictment IfOL 10 FOlQ proceedings
The defendant may waive erroneous or
roidable proceedings. but il Is neither in
The power Of the defendant. nor Of the
court. nor even Of the Legislature, Itself,
10 give validity 70 a void prosecution. OF a
void judgment upon void indictment.
These principles as well a. this con
,truction Of the act in question, are di-
-ectly sanctioned by the opinion Of this
sourf IN Newcomb VS.. the State, 81 Miss
r. 2. 3s3 II j. there held that article :.
D. So. Of the Rev Code, which provides
that all objections either to the form or
substance Of an indictment shall be made
before verdict applies 70 those cases only.
where the defect i Of such a character,
that the accused may waive il, either ex-
pressly Or By his silence. IL il then fur
ther held that a defendant cannot waive
objections 70 q void indictment. That
the right secured to him by our Constitu-
ton ITO demand the nature and cause Of
the accusation against him" cannot be
waived or surrender by him.
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