MR. JUSTICE CLIFFORD dissenting.
State Constitutions, as well as the Constitution of the United States, provide, in substance and effect, that no person shall be subject to be twice put in jeopardy of life for the same offence. Wherever that constitutional prohibition is found, whether in a State or the Federal Constitution, it is doubtless intended as a safeguard to the citizen against the repetition of a criminal prosecution in all cases where the accused has been once regularly tried for the same offence, and legally convicted or acquitted, which means that a party shall not be tried a second time for the same offence, after he has once been convicted or acquitted of the same by the verdict of a jury, and judgment has been rendered in the case against him or in his favor. But it does not mean that he shall not be tried for the offence a second time, if the jury in the first trial were discharged without giving any verdict, or if, having given a verdict, the judgment was arrested or a new trial was granted at the request of the accused; for in such a case the life of the accused cannot judicially be said to have been put in jeopardy. 2 Story, Const. (3d ed.), sect. 1787; United States v. Haskell, 4 Wash. 410; Same v. Perez, 9 Wheat. 579.
Borrowed, as that provision was, from the common law, it has everywhere been held to be subject to the same exceptions, limitations, and qualifications as were annexed to it by the expounders of the great repository of criminal jurisprudence. Vaux's Case, 1 Coke, 100.
Jeopardy, in the constitutional sense, arises when the accused is put to trial before a court of competent jurisdiction upon a sufficient indictment, and the prisoner has been legally convicted or acquitted by the verdict of a jury, as appears by the record thereof remaining in the court where the verdict was returned. 1 Bishop, Cr. Proced. (2d ed.), sect. 808.
Authorities may be referred to where it is held that the prisoner is put in legal jeopardy when the jury is duly impanelled and charged with his deliverance; but there are so many exceptions to that theory, that it cannot be regarded as a rule of decision, unless the trial is terminated short of a verdict and judgment, by the fault of the prosecutor.
Even when the trial terminates before judgment without the fault of the accused, or where the form of the trial, verdict, and judgment are in all respects correct, there are exceptions to the rule that the accused shall not be twice put in jeopardy of life, as well established and as universally acknowledged as the rule itself, of which the following are examples:--
Legal jeopardy does not arise if the court had not jurisdiction of the offence. Commonwealth v. Peters, 12 Metc. (Mass.) 387; Commonwealth v. Goddard, 13 Mass. 455; The People v. Tyler, 7 Mich. 161.
Nor is such a party put in legal jeopardy if it appears that the first indictment was clearly insufficient and invalid. Commonwealth v. Bakeman, 105 Mass. 53; Gerard v. The People, 3 Ill. 362; The People v. Cook, 10 Mich. 164; Mount v. Commonwealth, 2 Duv. (Ky.) 93.
Nor if by any overruling necessity the jury are discharged without a verdict. United States v. Perez, 9 Wheat. 579; The People v. Goodwin, 18 Johns. (N. Y.) 187; Commonwealth v. Bowden, 9 Mass. 494; Commonwealth v. Purchase, 2 Pick. (Mass.) 521.
Nor is such a party put in legal jeopardy if the term of the court, as fixed by law, comes to an end before the trial is finished. The State v. Brooks, 3 Humph. (Tenn.) 70; State v. Mahala, 10 Yerg. (Tenn.) 532; State v. Battle, 7 Ala. 259; In the Matter of Robert Spier, 1 Dev. (N. C.) L. 491; Wright v. State, 5 Ind. 290; Cooley, Const. Lim. (4th ed.) 404.
Nor if the jury are discharged before verdict, with the consent of the accused, expressed or implied. State v. Slack, 6 Ala. 676.
Nor if the verdict is set aside on motion of the accused, or on writ of error sued out in his behalf. The State of Iowa v. Redman, 17 Iowa, 329.
Nor in case the judgment is arrested on his motion. The People v. Casborus, 13 Johns. (N. Y.) 351.