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

/ aOAC.
The language employed in delivering
the opinion of the court shows that the
point now under consideration, was not
made
1t was insisted for the defendant p. $50
that the verdict of manslaughter is an ac-
quittal of the charge of murder, and as
the statute of limitation will bar another
indictment, for manslaughter merely, the
prisoner should be discharged.
The Attorney General replied, "that
the reversal of the judgment on the YER
dict OF manslaughter annuls the whole
proceedings upon the trial below, as well
for, as against the prisoner, and that the
Indictment having been avoided by the
pleas in abatement, he can be again in
dicted for the crime of murder"
The Attorney General, does not present
the point now urder consideration, that
the indictment and whole proceedings are
void, but urges that the reversal of the
| Judgment, of the court below, overruling
the defendants plea in abatement show
ing the illegal organization of the grand
jury, annulled the whole proceeding be-
low both as to the acquittal of murder,
and the conviction for manslaughter. He
did not assume that the whole proceeding
was void but reversed.
What does the court say Immediately
following this statement, made by itself of
the respective positions of the counsel for
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 higher grade of which he
might have been convicted, under the in
dictment upon which the issue was made"
If then on the face of the record it APP
| 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 iudg-
ments in the court below, one a verdict
and judgment of acquittal of the crime of
murder, from which no writ OF error was
or could b prosecuted, under our system,
| the other a verdict of guilty of man
slaughter, and Judgment thereon, from
which the defendant, alone, could prose-
cute writ of error 1.-The Judgment OF
/ EcNCIcAt COuAu GALCllu OILY 70 SUCu
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
| forv,o1 s,,1. of ooc,,ifo1
tered, but we hold that the sentence of
the court upon the verdict of manslaugh-
ter, was of itself, 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, 6,
bump. p. 4l0, where that court relying
upon the previous case of The State VS..
Norrel ., Yerger R. 33, state the rule to be
that verdict of acquittal upon a 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 cou6ne itself to indictments,
which on the record we're at least primo
facia legal though voidable upon plea oi
abatement as was the case before it. The
case of void indictment is expressly
pretermitted by the language used, Or
this subject the court says, 1T is not ne
: cessary that we should go into an exam
ination of the principles involved in th'
other question made by the Attorne.
! General" 1t may be admitted for tn
| sake of the argument, that the indict
ment was voiJable, and still under the re
. cord the prisoner would be entitled to hi
!, discharge. The indictment purports t
have been found by grand jury organ
i lied by the court. The record shows tha
, the prisoner was arraigued and regularl
e tried upon the charge therein contained
e and that he was acquitted of the charge {
murder upon the facts and testimony iT
e troduced before the jury. The statute
e decisive of the question, and was n
). doubt enacted to relieve against such C
l. ses. 1t is in these words, to-wit: "N
y person shall be held to answer on a Sc
, ond indictment, for any offence of whic
q he has been acquitted by the jury upo
a the facts and merits on a former tria
n but such acquittal may be pleaded by hi
n in bar of any subsequent prosecution f
Al the same offence, notwithstanding al
n defects in the form or the substance
r. the indictment on which he was acqu
l ted How. & Hut. p. $50; S. 5,
1. 725. S. 20.
1 "The statute says the conrt sis doe
i've of the question" What question
IN Whether n prisoner e'arraigned and reg
g, larly tried. /" and, acquitted ofthe char
n of murder upon the facts and testimoI
ID introduced before the jury" under
d, s'yeidable" indictment, was entitled to
y, discharged when the judgment TOR ma
" slaughter had been arrested, ana that
e- fence barred by the statute OF limItatlon
'e- In such case, the court says tine par
he has gone through the legal form OF
l trial and has by it established his Inn
cenee and hence the wisdom OF the sta
is ute. in providing for such cases,
no - - ,vbara there was an indlctmer
he however irregular or 'viodable." b
an certainly neither this decision, nor the
re, of the Legislature just quoted, were eV
IN designed to apply to case wnere IN IA IA
er there was no grand jury, no lndlctlnei
is no accusation, no power or authoii'y
,u- arrest, arraigD, try, convict or acqul., 1 ~
in hence no jeopardy OF lie OF n'1O
.ir- Ro,b the decision and the statute III
on -"eo-o,,oe 10 that class of cases, where q
IN dafandant waving, perhaps scornlng u
lst odvantaqe of technical or even suosta
on ,;ol defects in the record or indictme
Ter cboses to RELY on the facts and merits
his case for acauittal, rather than av'
vs. himself of the dement's OF the officers
VS.. the law. In such case, however erro
he eous or voidable, might be the procee
vs. inps against him, justice and good fai
$ l sanction the rule and the statute, viii
ate seals his acquittal 1t has relation
ate s.defects in the form of substrnce of
Ike Indictment" not to a void proceedil
- The defendant may waive erroneous
j7 voidable proceedings, but it is neither
the power Of the defendant, nor Of
sed court, nor even Of the Legislature, its,
S. to give validity to a void prosecution, o
urt void judgment upon void indlctme
ict- These principles as well as this Ct
IRE struetion of the act in question, are
ore rectly sanctioned by the opinion Of
? l court in Newcomb VS.. the State, 81 NJ
.66, r. D. 1888. II is there held that article
nal D. 573, of the Rev. Code, which provi
low that all objections either to the form
rim substance Of an indictment shall be M
Ev. before verdict applies to those cases OF
where the defect is Of such charac
pom that the accused may waive it, either
her pressly or by his silence. It is then
ion. ther held that defendant cannot WI
the objections 70 q void indictment. I
m a the right secured to him by our Const
rate ton ITO demand the nature and cause
for the accusation against him." cannot
waived or surrender d by him.
the The Judgment below must be rever