National Republican. (Washington City (D.C.)) 1872-1888, 1884-12-30
1--WE YrAns ron n1arLow.

The Court I'm Banc Reafiirms Ills
sentencc--An interesting Point De-
cidcd.
The appeal of Benjamin +. Bigelow from
the sentence Of five years in tho peniten-
tiary for the cmbozzlemont of $4,000
from tho National Bank Of the Republic
was decided in tho court in general term
yesterday. Tho plea was that ho had
been twice In jeopardy, contrary to the
constitution. lie was placed. on trial
Nov. 8, 1882 and, on motion of his coun-
sci, all Of tho Indictments were consol-
idated. A jury was impaneled and the
district attorney opening the case stated
what the government expected to provo
rs 10 all tho cases. When he concluded
short recess was taken, and upon tho
roassembling Of the court Judge Wylie,
the presiding judge, said that tho
opening had surprised him, aud If
tho government intended to do as
II had said 1t would consume
too much time, and on his motion the
jury was directed to be discharged and
the order of consolidation revoked. Tho
counsel for Bigolow insisted that the trial
should proceed In the way contemplated,
Dub huc COuIt Ttlubtu.. hc jury WIS uto-
charged, the motion to consolidate SGT
aside, tho plea of not guilty directed TO
be withdrawn, the government elected
on which indictment 1t would go to trial.
The defense excepted to the ruling, and
entered the plea of twice being placed in
jeopardy. To this the government de-
INJURED, and the demurrer was sustained.
The trial proceeded, MIR. Bigelow was
convicted on Nov. Ii, and ON Dec. 1, 1883,
was sentenced to five years in the Now
Hampshire state prison ct Concord. The
case thon went to the general term on
exceptions.
Justice janice delivered the unanimou.
opinion Of the court, and IL being point
without precedent in this district he read
from manuscript. Ho stated that thu
proposition which the defendant intended
to present was that he was put in jeopardy
Immediately upon the swearing Of the
jury to try the consolidated indictments
and without the introduction of any evi
donce against him, and that when tn,
jury was discharged and then resworr
to try one of the indictments included Ii
the consolidation he was twice put: ii
jeopardy for the Same ofiense In the sons
of the fifth amendments of the constitution
oftho United States, which declared tina
mo person shall be subject for the sam
offense to be twice put in jeopardy Of lif
and limb" Tho same or an equivalen
provision was contained in the constitu
tion of most Of the states. and its mean
ing had been interpreted as well by tn
statb as by the United States courts.
Tho judge cited case In point, an
said that such expressions suggested tn a
: jeopardy arose out Of the ldelibefation {
tho jury as to what their verdict shout
DO. In the FIRST place, the deliberatiot
of the jury could not begin before tn
trial began, and the empaneling an
swearing of tho jury was merely tho Of
ganization of tribunal In preparatio
for the trial. At that point the jury WI
merely ready for the trial, but had nj
Z yet entered upon the exercise Of the
liberation. But If it should BIO said tn,
X tho trial was begun by the statement
tho governments case, 1t would still
Z true that the functions of deliberatioi
had not begun when no evidence ha
been introduced against the prisoner.
He referred to the rights Of defendant
especially those involved in the disoharg
of juries in criminal cases, and said thei
was nothing to show In this case th
either the life or liberty Of tho defendal
had twice been placed in jeopardy, at
the decision of the court was that u
judgment Of the court below was atiirme
I, The decision will have the effect
confirming the sentence imposed. VIII,
Bigelow was sentenced (Dec. l, 1889, 81
New Hampshire state prison, at Concof
was the one to which United States pri
u oners were being sent. While awaitil
the final hearing in his case tho pris
was changed to tho one in Albany,
L,N tl,uN hs. a.
w ecuted without any legal bitches thai
Il, resentencing might bring about, it Ia 50
N that the attorney general will make O
s. rangements to have Mr.. Bigelow receiv
is and provided for at Concord, as the sc
a tence directs,