The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1884-12-06

fore 1t had been legally terminated, and COM
mehce again anew; for, by so doing, the re-
spondent is twice placed in jeopardy,-put in
Jeopardy. the moment jury is empanelled
upon an Indictment upon which a Judgment
can b5 pronounced. That jeopardy continues
until the respondent is discharged The re-
spondept has been discharged in this case, and
he would now submit, that, having been dis
charged, he cannot be again arragned and set
at this bar to plead on the same state Of facts
for the same identical offence to which he had
pleaded before and submitted himself to jury
OF the country.
Mr. Hadlock continued at length and
argued that the jeopardy could not be shifted
from one jury to another. The jeopardy might
continue from ore to the other, but it could
not begin anew. because to allow it to begin
anew would be to admit that person could be
twice put In jeopardy, which under the pro-
vision OF the Constitution could not be legally
done.
District Attorney Lunt then addressed the
court In behalf of the government. This plea,
he said, is filed, claiming certain rights under
the provisions of article five of the tenth
amendment to the constitution of the United
States, made in 1887, portion of which is AS
follows: Nor shall any person be subject to
the same offence to be twice put in jeopardy of
life or limb" The great tribunal whose duty
1t is to interpret the provisions of this const-
tuition, is the Supreme Court of the United
States and, when once that court has inter-
preted the provisions Of this section of this con-
stitutiou, no other tribunal can eainsay it,Ecer-
tainly no federal tribunal. Mr.. Lunt then read
at length extracts from Wharton's criminal
law to the point that the discharge of a jury,
when it takes place in the exercise of a sound
di,cretion, is no bar to the second trial. He
said that the position taken by the counsel for
the respondent is, that the jeopardy OF person
who is arraigned for crime, begins the moment
the jury has been fully empanneed, and upon
that point he should take issue with him. he
had filed demurrer under which he might
take advantage of any defects in form as well
as any want of substance in this plea. This
plea sets out former indictment. 1t is nee
essary that in order that this respondent
should have been in jeopardy at all, he should
have been convicted or acquitted upon good
indictment. If this is necessary, all matters
necessary to sustain this plea should be set
out; it should be alleged in this plea that the
Indictment was sufficient. No such allegation
appears. 1t is not even alleged affirmatively,
but lett for inference that this respondent was
ever arraigDed To be sure, 1t is supposed he
was arraigned If he went on for trial, but
there ia no alternative allegation in this plea
All these allegations should affirmatively ap-
pear. Il is not alleged in this plea that this
person In this court was tried by competent
court of Jurisdiction, ard that is necessary.
LIST Archibold, $40, contains authority. and
cites numerous cases. Mr.. Lunt then read that
portion of the respondents plea which he
claimed to be argumentative, and referred to
| authorities to sustain this point and stated
! IL at with these citations ne would submit the
! matter TO the court.
| Mr.. Hadlock responded briefly. The court
then said that this being matter of some
! magnitude in its scope, and that as he
| desired to consider some suggestions made in
| the arguments, he would announce his decision
| at the coming in of the court at o'clock in
| the afternoon.
| At the coming in OF the court in the after.
noon, the Court said that he had considered
the question raised upon the special plea and
| demurrer, with special reference to the single
| point raised by the counsel for the respondent
| He would not pretend to say that the short III
terval allowed between the adjournment ir
the morning and the present tune was suffi
| GENTLY adequate to investigate the whole sab
ject presented upon this plea, but with refer
encs to that be would say that it had been {
| frequest subject of careful investigation OF
| his part and only single point raised called
for special REORGANIZATION, and to that single
point he had devoted all his attention. HI
would say go much by way of guarding agains
the presumption of seeming to have examined
thoroughly and fully the questions of law in
volving SO voluminous presidents in that shor
time.
The court then considered at some length
the points raised by the plea and the demurrer
and ruled that the demurrer mast be sustain
cd, that the plea be overruled, and the TT
spondent held to answer further.
District Attorney Lunt then opened the cas-
for the government, and read in evidence sew
ersl deeds showing the title to the land upol
which Fort Popham is situated to be in tn
United States, and also offered in evidenc
certified copies of several acts of the Main'
Legislature relating to the property, all @
! which, except one, were excluded for the pres
eut, upon technical grsuDds.
Charles A. Clark was the first witness calle
for the government. He testified briefly rels
tive to the location of the land described i
the deeds which had been read in evidence
and as to the location Of the fort upon tn
same.
The court then adjourned until Saturday, a
10 O'Clock a. M