The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1884-12-06
SERGEANT KELLY.
Arguments Of Counsel on Special
Plea and Demurrer.
THE RESPONDENT HELD FOR
TRIAL.

TWO days. United States District Attorney
Luut filed special demurrer to the special
plea OF former jeopardy filed by q. D. Had
lock, Esq counsel for the respondent, and the
plea was argued.
Mr.. Hadlock addressed the court in support
OF the plea. The plea, he said, was based an.
on the constitutional principles Of the United
States which provides that no man shall he
put twice IL the jeopardy of life or limb for
the same offense. 1t has been held BY courts
OF eminent responsibility, federal courts that
this provision is not confined alone TO capital
cases, bnt extends to all felonits and even to
misdemesnors. The case pre- ssnted bv this
plea 1t somewhat novel. In the limited time
he had had for examination, he had found 20
cases exactly similar to it, but he had found
by analogy and reasons for the law, that this
was the proper way to address the court uuon
the question of former jeopardy, The demUr.
rer which has been filed admits everything
stated ia this plea with the exception that It
claims that it is argumentative and claimed
that he should be entitled to Judgment because
everything stated in this plea is admitted by
mat demurrer, and it is in the manner in
which IL is pleaded rather than the substance
OF it. But he believed that it might be
important that the entire right claimed under
II should be fully and freely discussed before
the court, and for that purpose he would pro-
ceed TO discuss the rights OF the respondent
IS presented by that plea.
The plea OF former jeopardy Is something
that belongs exclusively to the United States.
IL ~ part OF the fundamental law. II does
not rest upon decisioDs il is q part of the law
OF the land, broad and Free and, In this case.
the court would be untrsmmeled by decisions
upon this point, and would not be Obliged to
turn aside to follow the path beaten ont by
some other court, but could draw from the
nj q an raflr
is meant by former jeopardy? That "a W is n. t
clearly and fully determined, even in the
United States some courts going so far as TO
hold that when person has once been placed
upon trial, aDd if, during the trial, verdict is
not reached, end there shall be q disagreement
OF The jury, thar is former jeopardy. He
would not contend fer that doctrine. but
would submit TO the court that, If this indic.-
neat Which had been certified into this court
from the Circuit Court, had been prosecuted,
no plea Of former jeopardy could have been
raised. The jeopardy Is not upon the trial. Int
it is upon the indictment, and when the in
dlctment has been read and the party has been
called upon to plead thereto, and has entered
bis plea, and the jury have been charged with
the case and have heardthe evidence, then his
Jeopardy begins. There can be no dispute up
| ON That point; the law and decisions are all in
| accord upon it, and he would submit, that the
| jeopardy once having attached it continues
until such time as the judgment of the cour,
| or the verdict of jury should pass upon that
| lodictmsnt. Mr.. Hadlock here cited sections
| 1912 and 1045 of Bishops Criminal Law,
Mr. Haolock said that his position was this
That the Jeopardy attaches when the person il
| arraigned at the bar, and the indictment has
baen read and the jury charged to harken tt
the evidence. That jeopardy having attached
| continues. 1t is no jeopardy BY reason of thf
indictment. The finding of the indictment
does not place the prisoner in jeopardy it j:
but one step towards it. After that indictment
has been found aud returned into court. and he
has been called upon to plead, that is another
step, and still the jeopardy does not begin un
| I'll the jury are empannelled to try the caus,
| aud The issue is made up and submitted tc
them. Then the jeopardy upon that indct
| meDt begins, and continues from thai
time until the respondent be discharged
by verdict, or by the order by court
In this case, that jeopardy which began in thu
Circuit Court, did not finish with that court
but continued, and il this court can take iuris
| dictlon over case certified into it, after the
Jeopardy had begun in another court, if the
| papers 10 any other court bring with them
| everything that was done there, aud appertaiu
to them there, into this court as fully and clear
| ly es II the Indictment had been found here
| and the respondent had been put upon tria
here, then, rertsinly, in the state of proceed
ings when brought into this court there wa
no occasion for arraigning him, no occasion fol
| reading the Indictment to him, or asking hin
| to plead in this court for the obvious reason
| that ne had already taken those necesssr,
steps which caused the jeopardy to commence
| And he had already been placed upon trial
| and the issue had already been framed for tn.
| country and had been submitted to a jury
| That jury failing TO agree, the court In its dis
! erection had power to discharge them, using {
reasonable discretion. 1t likewise had power
to empannel another jury in that court, ant
forthwith. ii 1t should see fit, put the respond
| emit upon trial 1t did not empannel anothe,
jury and put the respondent upon trial, bu
the indictment was sent into this court, an(
| sent for purpose. 1t was for the purpose O
having his jeopardy determined upon that IL
dictment, and not for the purpose of bsinl
| held upon another indictment. The leonard
attached, and having once attached, there j
no power jim the court by which it can be sew
| cred. Nothing short of the verdict of the iur,
or discharge by the order of court could breai
the continuity of that jeopardy. 1t began ant
continued, and must continue until it finall,
ended. II person be indicted in one court
| or even in the same court, and be presented OF
one Indictment until the evidence is taker
out, and the District Attorney comes int,
| court and enters a mol pros of that Indictment
would it be held or argued for moment tina
| the Jeopardy had not begun? While he ma
mol pros after verdict, that mol pros is a com
plete bar to any other trial, as was held il
State vs.. Smith in the 9th Maine. He ma,
enter mol pros before jeopardy begins, an,
II he enters mol pros before the jeopardy be
| SADe1 buOEO Cdu U9 10 IduIb IOnQu, n
objection taken, because the person has no
been put in jeopardy; all the authoritie
agree upon that point, but, If he does not no
pros then and allows the jeopardy to attach, i
Is not within his power to enter mol pros at
subsequent time and deprive the respondent o
the rieht to have the jeopardy determined ate
it once begins. 1t is not a right which can b
trited with. Il cannot be allowed to run
little time, and then be shut off and com
menced anew. Upon the Indictment upos
which the respondent was arraigned before thu
Jury, aud with which the iury was CHARGED
and upon which they failed to come to con
clusiop and agreement, he has not yet beer
tried and acquitted or convicted by verde
of the jury, out he has been discharged b,
order OF the court, court over which he ha
no control or power, and the respondent wa
helpless in this matter SO far as any act upor
his part could go. Mr.. Hadlock would submit
as principle of law, that the jeopardy having
attached when the trial commenced, when thl
jury were empanneled in the first cause, that
Jeopardy continues until that indictment wa
disposed of, aud when that Indictment is final
ly disposed of that ends the jeopardy.
MIR. Hadlock argued further that leopard,
had begun in this case, and there was no au
thority to be found that wonld hold that III,
jeopardy ended by the disagreement o
ended END jury hess The if sd sas jeopardy
once began and having ended, when the
respondent was arraigned again, he was pu
| upon trial the second time for the same Of
tense, and it is only because the respondent il
not upon trial for the second time that courts
when juries have failed to agree upon a yer
| dict upon an indictment, have held that bt
| was not in jeopardy, that the jeopardy had not
been completed. He would submit that the
| jeopardy having commenced with the en-
pannelling of the jury in the first trial, it COL
| tinues until that indictment to which the
| respondent had pleaded, had been disposed of
| and it matters not how many trials may BIZ
had, it is one and the same jeopardy contin
uing upon that indictment, bat when thf
| jeopardy had ceased upon the indictment, and
| the indictment had become no more, no
| pros hes been entered, then. that Jeopardy
| which had began, was terminated, otherwise
| there would be no protection under this con,
| stitutional amend ment. Having begun it mus
continue until finally determined by due pre-.
cess of law.
| Mr.. Hadlock cited authorities with regard tt
felonies and msdemeanors being included in
| the plea of former jeopardy, and claimed that
| the jeopardy began in this case when the first
| jury we're empaneled to try this cause. II
| must be assumed that the indictment upon
| which the RESPONDENT was arraigned and plac
| cd before the jury, was sufficient Indictment
| The demurrer fled admits all that The law
presumes the indictment is sufficient until
| something appears to the contrary. 1t being g
| sufficient Indictment there was nothing to
prevent this court from pronouu cing judgmeh u
| upon it. 1t might possibly require more than
| one trial. The accused could not object to
that. 1t could be repeated as many times as ii
| became necessary by the disagreement of the
flR1 hr1i rfa ION nf