Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-01-28
YERGER.
The Case Of the State Of Mississippi ys. E.
n. YeFgsf CsmmChesd.


| From the Jackson Pilot, OF Thursday.l
The case Of the State vs.. Z. NJ. Yer
/ ger, came on yesterday at the Circuit
/ Court, before Judge Brown, for hear
| ing on the argument Of special pleas.
! On the case being called, Judge
! William Yerger announced that
/ Judges Johnston and Potter would
appear with him for the defense.
District Attorney Lea and Mr.. e. p.
| Jacobson were for the State.
Judge YergeT at the opening of
I the ease, read a plea Of = former JeOp-
ardy" OF defendant, in which he sets
forth his trial by military commission,
| and averred a finding of the same
/ without stating the nature Of the find
/ ing.
I District Attorney Lea then read q
| general demurrer to the plea on part
of the Slate. HereUpOn hr. Z. p.
Jacobson, special counsel for the
State, addressed the court in a power
ful and lengthy speech, lasting about
three hours, in favor of the demurrer.
He first reviewed the character OF a
military finding when not reviewed
or approved by the reviewing author
military commission was not equiva-
lent to a verdict at common law.
The latter Is q final decision upon the
facts in the case, which can only be
reOpened at the request of the defend
ant, while the former, as q matter of
course, is reviewed in each case by
authority superior to the commission,
and does not assume the character Of
finality until the reviewing authority
has expressed IFS appreciation of it.
This is not alleged in the plea. He
next cited authorities to show what
constituted a" former jeopardy" in
England, previous to the adoption of
the Federal Constitution. By other
authorities he showed that the pro-
vision in the Constitution was merely
a solemn declaration of the common
law principle. He insisted that at
common law nothing short Of a con-
viCti0n or acquittal could be pleaded
in bar. He proceeded to review the
authorities in the State OF Mississippi,
and argued that they laid down at
least as strict a doctrine as common
law.
His next point was the UncOnstitu-
tiOu8iity of the military commission,
whilst he insisted that the legislation
Of Congress in respect to the recon-
structiCn Of the Southern States was a
legal and constitutional measure, and
q result Of the Injunction upon Con-
gresS to guarantee to each State a
republican form of government, and
commented at length upon the eXi.
g6ncies which made that legislation
eminenuy proper. He argued that
any trial Of a person for crime in a
mode other than by jury is contrary
to the 9Th amendment to the COnsti-
tuition of the United States, and can
in no wise constitute a jeopardy. lie
commented upon the object and ma
ture Of punishment, and insisted that
society demands a construction of law
which viii protect it against crime.
Judge A. r. Johnston then opened
the argument Of the defense against
the demurrer, and cOntended that the
finding Of the Military Commission
was of a final character and equiva-
lent to a verdict at common law. He
insisted that inasmuCh as q demurrer
confessed all the allegations in the
plea, and as the latter aYerred that a
finding was had by the commission,
il was sufficient to constitute a ieOpar-
dy. be read from various decisions
in the United States to the point that
no judgment upon conviction was
necessary to constitute a bar. He
also viewed the authorities in this
State, and contended that though
they apparently supported the views
expressed by Justice Washington, in
4 Washington, G. c., and by the Su.
preme Court OF the United States, in
8 Wheaton, cited by Mr.. jacobson,
still in fact they supported the view
that a simple conviction or acquittal
will bar future indictment.
The main argument of Judge John |
StOn, however, was that the State of
Mississippi at the time of the trial of
Nerger, was under a de fdctO govern
ment, from which he argued that its !
acts under the common law, and by
the decisions Of this State, must be Of
biz ding and conclusive force when
called COllaterally into question.
At the conclusion of Judge John
stOn's argument, Judge George l..
Potter followed in an elaborate
speech, but had not concluded when
I he Gourt o6iDlrr-Ylad