Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-01-30
YERGER.
CoatIuuatl0H Of he Case in the Circuit
Court Of Rsds0H C0Hnly, Hiss.
An Asls Exposition Of the Law by The
Defense.

From the Jackson Miss Pilot.
We give place to the following ar
gumeut of Judge Potter in the above
cause yesterday. 1t is an able expo
sitOn Of the law as viewed by the
counsel for the defense:
Upon question, what is jeopardy"
an a legal sen5e2
It is asgued that the accused is not
in jeopardy before verdict and judg-
ment thereon. They seem 10 admit
that there is a legal jeopardy in every
criminal trial properly conducted TO
final conclusion. But they insist that
such jeopardy cannot arise before YER
dict, nor by verdict; but only by YER
dict and judgment thereon. II this be
true, the question arises when is a
party in legal jeopardy, who is ac-
quilted by the verdict, and discharged
by judgment thereon? Here accord
ing 10 the argument Of opposing cOun-
sel, is a case in which there was no
jeopardy. Justice Washington tax
ing this view held that the cOnstitu-
ti0nal provision protecting the citi-
zen from a double jeopardy for the
same offence, applies only to the case
Of a fOEmer cO1Uic5iOH, but If this be
true, yOu may try a man over and
over, for the same offence, until you
secure a verdict Of guilty for until
convicted, as they say, he cannot in
woke the protection Of the cOn5titu-
zion.
Buifthis question is settled sin this
State. In two cases, It has been held
that a legal verdict, without Judgment
is sufficient, and in q late case our
High Court held that, if a jury charged
with the case Of a prisoner indicted
for felony, be Improperly discharged
before verdict, the accused cannot be
again tried for the same Ofense, and
thus the doctrine here is that legal
jeopardy exists even before verdict.
The settled American doctrine is that
q Judgment npOn the verdict is not
essential.
Our plea AYERS that the Military
Commission did find and decide the
case5of YeTger; and this is admitted by
the demurrer II in a case when
there Is a lawful verdict, there is al
ways a legal jeopardy, so in this case,
the accused was put in legal jeopardy
by the military trial which proceeded
70 a finding anG decision. 1t is urged
that this finding and decision was not
1inal, because no approval Of the Cen
eral or President is shown. The same
argument applies in the case Of q YER
dict at law. 1t cannot be enforced by
any process, but requires Judgment
thereon, in order to execution. So Is
il with the finding and decision Of
this commission. 1t cannot be en-
forced until approved; but il stands
precisely as the verdict at law before
it is sanctioned by the judgment Of
the court. IL q legal verdict, without
Judgment, bars another prosecution, |
80 does this finding and decision Of
fhe Commission.
Second. But, they urge that the I
action Of this Military Commission |
was illegal, and therefore the defend /
ant was not put ia legal jeopardy by l
the proceedings before it. They in /
slst that ii had no Jurisdiction to try /
a citizen not connected with the mill |
tary service; and that the section of i
the act Of Congress giving this au-
thOrity, is void under the COustitu- /
ton. This same objection was made /
by Aerger before the Commission.
and Overruled. Upon this ground he |
alsC appealed for protection 10 the /
Circuit Court Of the United States, but |
that Court remanded him back for
lElal before this Military Commission. /
NOW that military commissions have
ceased, ana some other tribunal must
De sought f0r the trial Of defendant.
gentlemen seem ready to confess euv-
thing, - order TO have another trial
ready 70 admit all the acts OF fhose
commissions, in the trial, imprison-