The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-05-17
DECISIONS OF THE HIGH COURT
IREPOErED ExPREssIT Poa IKE EASTERN clAEIoS.l
Frederick Rohlheim

1897
J. The State
/ The plaintiff in error was indicted fol
murder. and convicted of manslaughter in
i the Court below, and sentenced TO i'm
!, prisonment IN the penitentiary. A mo-
ton in arrest ofjudgment was made on sew
eral grounds among others on the ground
that the indictment was not found by a legal
grand jury, and also that there was no in
dictment or issue on which the plaintiff
IN error could have been lawfully put
upon his trial. This motion was over
ruled.
Afterwards motion for new trial was
made which was also overruled. Excep-
lions were taken and allowed and the
cause IS now brought to this Court by
writ of error.
Many grounds of error are assigned in
the record before us But it being con
ceded that the indictment was void. be-
cause the record shows that it was found
by an Illegal body acting as a grand jury.
the question now made before US is what
disposition shall be made of the accused.
1t Is urged that the finding of the jury
Is an acquittal of the crime of murder |
| and he cannot be retired for that crime. |
! That the record shows that the offence of /
manslaughter is barred by the act of limi- /
tations, and he cannot therefore be con-
vieted Of that offence. 1t is insisted then
that he should be discharged by this
Court on the ground that there was no
valid indictment against him. appearing
IN this record upon which a judgment
could be pronounced, that a Judgment
should have been arrested on the motion
OF plaintiff in error in the Court below.
and IN correcting that error this Court
must necessarily discharge the accused as
no further prosecution can be maintained
against him for the offence.
1t will be observed that the sole ground
upon which the present application is
predicated, seems TO be total nullity or
invalidity of the Indictment upon which /
TINS Rrosecntlon 4 hasee. llE q.Vaesti4sssy ~ y
a criminal prosecution void on its face. {
Independent of statutory or eonstitu- S
tional provisions in this State, to which v
we shall hereafter have occasion to refer c
it is an established maxim Of the com r
mon law in the administration of criminal +
Justice constantly recognized by elemen- |
tary writer's and Courts of judicature Z
from "a very early period down to the pres I
ent time, that man shall not be v
brought into danger Of his life, for one 4
and the same offence for more than once"
In the case of the United States vs.. Gil a
bert, Summers r. p 3S, Judge Story t
states the rule and collects and reviews n
the authorities showing that a former con- t
viction oracquittal may be pleadedin barof {
a second indictment for the same offence, 4
even at common law. But the rule thus a
recognized is always stated with the quail n
ication, that ''it Is intended of lawful d
acquittal or conviction, for if the acquit- d
tai or conviction is not lawful, his lite was
never in jeopardy" 4 Cooks Rep. 40 AZ; u
case of William Vaux. Hawkins P. c.
Book Oh. &c 5. Is; ? Hale Ch. 3l-2 p 243, e
PSI Regina VS.. Goddard Led. Raym. il
30 Armstrong vs.. Lisle ! Salk 63, ii
People vs. Barrett ] John r. 66. The +,
People VS.. Casburns u John K. 351. j
Thus we see that the maxim is embed
ed in the very elements Of the common v
law and has been uniformly construed to il
present an unsurm Iuntabie barrier to a "
second prosecution where there has been 4
q verdict of acquttal or conviction regu- a
larly had upon a sufficient Indictment G.
Such was the rule of the common law, p
and its Interpretation at the time il was q
adopted into the constitution of the Uni c.
ted States as an article of the bill Of il
rights, and subsequently into our constitu- o
ton as the 18th section Of our declaration 6
Of rights. [see Sd. Greenleafs Ev. p Al 81
Sect. 35 and numerous authorities cited n
in notes; Wharton's Amer. Cr. Law P. C
54l, SOL, 573 5S7. | Bishops Or. /. 663, d
666, 673. GIL, and authorities cited. d
By the constitution of Mississippi il
declaration of rights Sect, l3) it is pro q
vided that mo person shall, for the same Il
offence, be twice put IN jeopardy Of life a
or limb" n
The same provision is contained in the Il
Of the United States, and the d
Of most If not all the States q
and the decisions of the Courts have con s.
stantly recognized, the principle under p
their written constitutions so fully estab o
Iished by the common law, that IF the h
be so defective in form that a q
Judgment could not be pronounced upon b
It against the defendant, he has not been il
in jeopardy and if acquitted the acquittal d
would be no bar to another prosecution d
for the same offence" see Bishop Cr. q
Law 5. 663 S. 666, Hale. P. c. 24s, t,
John r. GG, CockeS4. Rice Rp. l, NJ. r
& S. 1S3. 3 Net 32S, 2 st. q Porb. 34I,
Va. cases 3l2. a.
1t IS further said by Mr.. Bishop upon Y
4 n sentence s. pronounced upon con q q
viction, the defendant viii be protected /,
while the judgment remains unreversed, ..
not because he has ever been in jeopardy, d
but because of a general and very impor- 81
tant principle Of the law that on errone- Il
ous final Judgment rendered by a compe- Il
tent tribunal having jurisdiction over the h
subject matter Is voidable only" DC, ] 4
Bishop 5. 663. q
But in S. 666 be says when man is n
brought before a tribunal that has no -
Jurisdiction over the offence with which he b
IS charged. OF that has its existence by an G.
act Of the Legislature, o
Dr. that Is holding a term Of Court un- d
authorized by law, or that for any other / Il
reason has no authority 10 try him, he is "a
not IN jeopardy, however far such tribu- al
nal may proceed with his case And in + IA
most, and probably all Of these cir p
sumstances. the final judgment when ?,
pronounced is not a4voidableV a. men T Il
ioned IN a previous section IS. 663 Just A.
luotedl but void, 50 that his conviction / Il
Inreversed Is no more a bar 10 another ii
prosecution than his acquittal. b
State vs. Oden Black 1876, Comm. vs.. b
HYDE Thacker Cr- cases 1I2, Comm vs. ii
Peters u Net 3s7. 4 Misso. 5TG The :,
state vs. Cory Blackf. 5. Marshon vs. ir
Jenness II \. H. Ij6. Comm vs. Myers / / I,
Va cases 1sS. 24s. Rector vs. The State =
Fncl lS7 fsee Mcf5innis vs.. The State Z ..
, Hump 43) Dunn rs. the State . Pike ir
21q. Rex. vs.. Bowman 8 Car p. 33T- r
The State vs. Atkinson 9th Hump. 677 / =,
Comm. Vs. Alderman Mas. AZ. Il
Mr.. Wharton IN tire 4th and revised Z.
Fdit. Of his work on American CT. Law 5. !,
54I saws A legal acQuittal In any Court '.
81 competent jurisdiction. Il the indict-
ment be good VIII be sufficient 70 pre- s,
elude srv Istlhseouent proceedings, before I r.
every other Court. fSee Arch. C. p -. ] 2,
Green r. Sol u. Comm. 81. = Maine 256- r
5 Rand 500 At. 5 SO the constitutional .
provisions Of the Federal and State Gov Il
ernments are noticed and the same prln- q
ciple stated; 50 in Sd Greenleaf On EE- b
. II S. 35 6. "
1t seems 70 be clear. therefore. upon q
principle a. well a. authority that neither p
AZ common law nor BY our constitution, q
viii an acquittal or conviction where the o
penalty has not been inflicted upon a q
void proceeding or Indictment. operate 9
as a bar TO a subsequent Indictment for 9