The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-05-17
DECISIONS OF THH HIGH COURT.
OCTOBER TERM, 1850.
lREPoErED EXPRESSLY PoR THE EAsTERN CLARION.
Frederick Rohlheim

The State.
The plaintiff in error was indicted for
murder, and convicted of manslaughter in
the Court below, and sentenced to i'm
| prisonment in the penitentiary. A mo
ton in arrest stofjudgment was made on sew
eral grounds among others on the ground
that the Indictment was not found by 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 a new trial was
made which was also overruled. Excep-
tions 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-
eeded 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.
It 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-
victed 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
this prosecution is based. The question
therefore to be decided now Is. whether
any or what effect IN law is to be given 20
a criminal prosecution void on its face.
Independent of statutory or constitu-
tional provisions in this State, to which
we shall hereafter have occasion to refer
it Is an established maxim of the COM
mon law in the administration of criminal
Justice constantly recognized by elemen-
tary writers, and Courts of judicature
from very early period down to the pres
ent time, "that man shall not be
brought into danger of his life, for one
and the same offence for more than once"
In the case of the United States VS.. Gil
bert, Summers R. p 3S, Judge Story
states the rule and collects and reviews
/ the authorities showing that former con-
vietion oracquittal may be pleadedi in bar of
a second indictment for the same offence,
even at common law. But the rule thus
recognized is always stated with the quail
fcation, that 'it is intended of lawful
acquittal or conviction, for if the acquit-
tai or conviction is not lawful, his life was
never in jeopardy" Cooks Rep. 40 AZ;
case of William Vaux. 2 Hawkins P. c.
Book Oh. &c S. Is; . Hale Ch. 3l-2 p 243,
25l. Regina VS.. Goddard 2 Led. Raym.
go. Armstrong vs.. Lisle l Salk 63,
People VS.. Barrett ] John r. 66. The
People VS.. Casburns u John r. 35l.
Thus we see that the maxim is embed
ed in the very elements of the common
law, and has been uniformly construed to
present an unsurm luntable barrier to a
second prosecution where there has been
a verdict of acquittal or conviction regu.
larly had upon a sufficient Indictment
Such was the rule Of the common law
and its Interpretation at the time it wa:
adopted into the constitution of the Uni
ted States as an article of the bill o
rights, and subsequently into our constitu
ton as the 18th section of our declaration
Of rights. Isee Sd. Greenleaf-s Ev. A
Sect. 35 and numerous authorities citeC
in notes; Wharton's Amer. Cr. Law P
54l, 55l, 573 5S7. Bishops Or. L. 663
666, 673. GIL, and authorities cited.
By the constitution of Mississippi
tdeclaration Of rights Sect, 13) it is pro
vided that mo person shah, for the sam
offence, be twice put in jeopardy Of lif
or limb"
The same provision is contained in tn
constitution Of the United States, and tn
constitutions Of most il not all the States
and the decisions Of the Courts have cor
5 stantly recognized, the principle unde
their written constitutions so fully estal
lished by the common law, that ''if tn
indictment be so defective in form that
: Judgment could not be pronounced upo
It against the defendant, he has not bee
! in jeopardy, and if acquitted the acquitt,
would be no bar to another prosecutio
! for the same offence" see Bishop G
Law S. 663 s., 666, Hale, P. C. 24s,
John r. &C, 4 Cockea4 Rice Rp. l, l
4 S. lS3, Net. 328, 2 st. & Porb. 34l,
Va. cases 3l2.
II is further said by Mr. Bishop upo
the authority Of many adjudged case
that if sentence be pronounced upon CO.
viction, the defendant will be protecte
while the judgment remains unreverse
. not because he has ever been in leopard
= but because of a general and very impo
tant principle of the law that on erron
! Gus final Judgment rendered by a comp
i tent tribunal having jurisdiction over 4
\ subject matter is voidable only" &C.,
: Bishop S. 663.
4 But in S. 666 he says, when a man
il brought before a tribunal that has
: Jurisdiction over the offence with which
u is charged, or that has its existence by
unconstitutional act of the Legislatul
or that is holding a term OF Court y
authorized by law, or that for any oth
reason has no authority to try hlm, ne
- not in jeopardy, however far such trlt
nal may proceed with his case. Ana
ID most. and probably all Of these
lis cumstances. the final Judgment Wh
1g nronounced is not "voidable" as me
al toned in previous section 5. ooS J!
IT'S ouoted) hut void, so that his convlctil
as unreversed is no more bar TO ano'h
lie prosecution than his acquittai'
nv State vs.. Odell 4 Black l36, OoInIn'
be.l TT,,do Tboclxer Or. cases ll2, Comm;
Pstars 10 Met. 3S7, Misso. $40. l
state Va. Cory Blackf. 5. Marshon non.
Jenness IL n. II. l56, Comm VS.; 1;,A NY 81,
= Va cases Iss. 24S, Rector VS.. In ne ,S.' S.'
. / FngI. 1877. (see McGinnis VS. VS.. nc p; p;
0 HUMP 43) Dunn vs.. the state od7
A. 900 Rev. VS.. Bowman Car ST y Z, o''
Tbe S,ate VS.. Atkinson 9TH ilI lump
can can co~n ~ ,T''' vs.. Alderman 4 Mass. Az;
'A' NJ NJ Wharton in tho 4th ana revl'
la Fdit Of his work on American Cr. Law eN
,sn 5iI i1T'.1 savs A legal acquittal IN any 20
we'll 81 competent Jurisdiction, II .tne lnu
one ,...'t % 1v ~ rood will be sufficient to
oIrde any subsequent proceedings pei
oluIv l'n-v other Court. See Arch. .. ?. q
x, ~ Green r. SOL u. Comm. "a, 2 Maine
= = : Rand. 500. At. S. 573 the constitutio
.,-ovisions of the Federal and State G
pp-0ments are noticed. and the same p
c;nle stated; so in Sd Greenleaf on
Al S. 35 6.
a5 9sny II seems TO be clear, therefore, u
fu- principle rs well as authority that nei,
ben ben AZ common law nor by our constitut
the viii an acquittal or conviction twhere
penalty has not been inficiedl upo
void proceeding or indictment. ope
s''A as a bar to a subsequent indictment
y = the same offence.