The Hawaiian gazette., 1872-01-17
supreme Court. Jnn'y Term. 1s7a
THE KING rs. a. MANNER.

CHIEF JUSTICE ALLEN:
The defendant was convicted of the lar
ceny of cattle by the district magistrate of
Koolauloa about the 25th of October last
past, from whose judgment he appealed
to this Court, and the same is now pend
ing. The defendant, by his attorney,
files plea 4 bar to any further pro-
ceedings in this case, in which he al
leges that he was duly convicted by the
same district Justice on or about the til
of August for the same act of larceny,
from which he appealed to the Supreme
Court, and that the same was entered at
the last October term, and that at the
same term of said Court q noHe prOSequi
was entered by the deputy attorney-gen-
eral. with the consent of the Court.
The counsel for the defendant contends
that as the law will not suffer man to be
twice put in jeopardy for the same offense,
that this defendant should be discharged.
He contends that the judgment of the
magistrate and the discontinuance of the
complaint on the appeal from said judg-
ment, is the same in principle as if the de-
fendant had been indicted, tried and ac-
quilted.
1t is an admitted principle that there
cannot be legally a second prosecution
when there has once been verdict of ac
quittal, or conviction, regularly had upor
a sufficient indictment.
1t is contended that as the discontinu
ance of proceedings in the appellate Court
operated by force of law to defeat the
Judgment of the magistrate, that therefore
it is analogous to an acquittal after trial
The Code is in these words; "Any per
son acquitted on trial of any charge o
any ofense upon the ground of variance
between the indictment, information o
complaint and the proof, or upon any ex
ception to the form or to the substance o
the indictment, information or complaint
may be subsequently, tried and convicted
of such offense under new indictment
information or complaint, notwithstand
ing such former acquittal."
Bv the provision of the Code, a mai
NAV be tried and convicted upon a subse
qurnt Indictment for the same offens
when he was discharged upon insufficien
indictment, and by section 1910 of tn
Code it is provided that when an appea
is duly taken and perfected in any cas-
provided for in this chapter, this shall i'm
mediately thereafter operate as an arres
of Judgment and stay of execution. II
for example, discharge is made by a cor
oner's inquest or grand jury, it will not b
contended that it is bar to a subsequen
prosecution.
1t will not be denied that after man j
arrested, and discharged by the commit
ting magistrate, he is still liable to new
Indictment. In the case at bar, the judg
ment of the magistrate was that the de
fendant was guilty, and discontinuanc'
was entered in the appellate Court befor
trial. This cannot be considered as anal
ogous to an acquittal after trial by jur.
on good and sufficient indictment.
The constitutional provision is, that
man shall not be twice put in leopard,
for the same offense, and performance o
the sentence pursuant to the judgmen
would constitute bar to an indictmen
for the same offense.-Com'th VS.. Loud,
Met. 32s.
In the case of the People VS.. Casborous
l3 Johns 35l, the Court say that if, afte
prisoner has been convicted, the judg
ment is arrested, the proceedings set aside
and the prisoner discharged, he cannot b
said to have been legally placed in jeopar
dy, and cannot plead the arrest in bar t
subsequent indictment.
In this case, the proceedings of the ma
gis,rale were set aside and his judgmen
virtualv arrested, and it does not presen
so strong a case for the defendant as tina
referred to in johnson, as in that case th'
defendant had been convicted by jury
We regard the conviction in the magis
trate's court as conclusive when the sen
tence is complied with, but on an appea
when discontinuance is made, it is anal
ogous to a nOHe proseqaa on an Indictment
and we regard it as no bar to subsequen
proceedings.-S Metcalf 82s, Com'th VS.
Loud; 10 Mass, 455 VS.. Goddard.
Plea an bar aqjudged bad
Attorney General for the Crown; A. F
Judd for defendant.