From this class of acts which constitute two or more distinct offenses, are to be distinguished those acts which are punishable by the tribunals of two or more countries, or by two or more tribunals of the same country. Here the offense is a simple one, but cognizable in two jurisdictions. In such case an acquittal or punishment in one may be pleaded in bar to a prosecution in another, court based upon the same act. Thus, in Grafton v. United States it was held that one acquittal by a military court of competent jurisdiction could not be tried a second time in a civil court for the same offense.46

This doctrine holds even though the punishment which may be inflicted by the court is different from or greater than that which may be imposed by the other; or even if the indictment in the one court charge a different crime from that stated in the other. In Chitty's Criminal Law it is said: "It is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other.

Thus, a general acquittal of murder is a discharge upon an indictment of manslaughter upon the same person, because the latter charge was included in the former, and if it had so appeared on the trial the defendant might have been convicted of the inferior offense; and, on the other hand, an acquittal of manslaughter will preclude a future prosecution for murder, for, States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, -a riot, assault, or a murder, and subject the same person to a punishment, under the state laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other."

45 206 U. S. 333; 27 Sup. Ct. Rep. 749; 51 L. ed. 1084.

46 The court refuses assent to the view that the accused had committed two distinct offenses-one against military law and discipline, the other against the civil law.

if he were innocent of the modified crime, he could not be guilty of the same fact, with the addition of malice and design.'

1947

In Commonwealth v. Robys the court say: "An acquittal on an indictment for murder will be a good bar to an indictment for manslaughter, and, e converso, an acquittal on an indictment for manslaughter will be a bar to a prosecution for murder; for, in the first instance, had the defendant been guilty, not of murder, but of manslaughter, he would have been found guilty of the latter offense upon that indictment; and in the second instance, since the defendant is not guilty of manslaughter, he cannot be guilty of manslaughter under circumstances of aggravation which enlarge it into murder.” 49

§ 424. What Constitutes Jeopardy.

What constitutes "jeopardy" is, in accordance with the general principle of constitutional construction, to be determined by the usage of the word and the custom of the common law at the time the Constitution was adopted. By the common law not only was a second punishment for the same offense prohibited, but a second trial forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.50

It is not necessary, in order that prior jeopardy may be pleaded in bar, that there should have been a former trial and verdict by a jury. This is not the rule uniformly stated, but as declared by the Supreme Court in Kepner v. United States,51 "the weight of authority, as well as decisions of this court, have sanctioned the rule that a person has been in jeopardy when he is regularly charged with a crime before a tribunal properly organized and competent to try him: certainly so after acquittal." 52 "Undoubtedly," the court add, "in those jurisdiction where a trial of one accused of crime can only be by a jury, and a verdict of acquittal

47 Vol. I, p. 452. Quoted with approval in Grafton v. United States. 48 12 Pick. (Mass.) 503.

49 Citing Starkie, Crim. Pl., 2d ed. 322.

50 Ex parte Lange, 18 Wall. 163; 21 L. ed. 872.

51 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114.

52 Citing Coleman v. Tenn., 97 U. S. 509; 24 L. ed. 1118.

or conviction must be by a jury, no legal jeopardy can attach until a jury has been called and charged with the deliverance of the accused. But protection being against a second trial for the same offense, it is obvious that where one has been tried before a competent tribunal having jurisdiction he has been put in jeopardy as much as he could have been in those tribunals where a jury is alone competent to convict or acquit." 53

Where, upon a former trial, the jury has reported disagreement and, it appearing reasonably certain that an agreement cannot be obtained, the jury has been discharged by the court, a plea of former jeopardy will not be held good.54

In Hotema v. United States it was held that a plea of former jeopardy to an indictment for murder could not be based upon the fact that, upon the trial of two consolidated indictments for two

53 Citing People v. Miner, 144 Ill. 308; State v. Bowen, 45 Minn. 145; State v. Layne, 96 Tenn. 668.

54 In United States v. Perez (9 Wh. 579; 6 L. ed. 165), the court say: "We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject in the American courts; but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.”

In Keerl v. Montana (213 U. S. 135; 29 Sup. Ct. Rep. 469; 53 L. ed. 734), the court, quoting the above, say: "This is the settled law of the federal courts since that time." Citing Logan v United States, 144 U. S. 263; 12 Sup. Ct. Rep. 617; 36 L. ed. 429; Thompson v. United States, 155 U. S. 271; 15 Sup. Ct. Rep. 73; 39 L. ed. 146; Dreyer v. Illinois, 187 U. S. 71; 23 Sup. Ct. Rep 28; 47 L. ed. 79.

55 196 U. S. 413; 22 Sup. Ct. Rep. 895; 46 L. ed. 1225.

other murders committed by the defendant on the same day as the one charged in the indictment in question, he was found not guilty because insane, which defense was again set up.

§ 425. Jeopardy and the Right of Appeal.

5C

It is established that in criminal cases, the State has no right of appeal where the accused may fairly be said to have been placed in jeopardy. This, the doctrine of the common law, has been repeatedly accepted by the United States Supreme Court. A verdict or a judgment in a trial court in favor of the accused is, therefore, as to him, final and conclusive. But acquittal before a court without jurisdiction is absolutely void and, therefore, no bar to a subsequent indictment and trial before a court having jurisdiction. The fact that an indictment was fatally defective does not render the judgment void, but voidable only. This the government could not set up on writ of error, and, of couse, the defendant would not. The judgment could not be collaterally attacked. Thus in United States v. Ball the court say: "As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." 58

Where, upon conviction, the defendant has taken an appeal, and

56 See United States v. Sanges, 144 U. S. 310; 12 Sup. Ct. Rep. 609; 36 L. ed. 445, and authorities there cited.

57 163 U. S 662; 16 Sup. Ct. Rep. 1192; 41 L. ed. 300.

68 In Kepner v. United States (195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114), this language is quoted and approved, the court adding: It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not against the peril of second punishment, but against being tried

for the same offense."

a new trial has been ordered, he may be found guilty of an offense of a higher degree than that originally found against him. Thus a verdict of manslaughter having been rendered, and appeal taken, and a new trial awarded, a verdict of murder may be returned. This is the doctrine definitely declared in Trono v. United States,59 the court, after a review of authorities, saying: "We do not agree to the view that the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment, or of any lesser degree thereof. No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it, and to ask for its reversal, he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense contained in the judgment which he has himself procured to be reversed."

60

As to the right of the defendant thus, by seeking a new trial, to waive the constitutional protection affored him by the first judgment the court admit that by seeking a new trial the accused may and does waive his right to the plea of former jeopardy as to the crime of which he has been convicted. The only question is as to the extent of that waiver, and, the court say, it "seems much more rational and in better accord with the proper administration of the criminal law to hold that, by appealing, the accused waives the right to thereafter plead once in jeopardy, when he has obtained a reversal of the judgment, even as to that part of it which acquitted him of the higher while convicting him of the lower offense." The doctrine of Hopt v. Utah does not, therefore,

59 199 U. S. 521; 26 Sup. Ct. Rep. 121; 50 L. ed. 292.

Citing United States v. Ball, 163 U. S. 662; 16 Sup. Ct. Rep. 1192; 41 L. ed 300.

61 110 U. S. 574; 4 Sup. Ct. Rep. 202; 28 L. ed. 262.

62 It is to be observed in the Trono case four justices dissented, and Justice Holmes is recorded only as concurring in the result.