Canter v. People

1 Abb. Ct. App. 305 | NY | 1867

By the Court.

Davies, Ch. J.

Assuming, as we may for the purpose of deciding this case, that the offense set forth in the first indictment, and upon which the prisoner was tried and acquitted, was the same offense as that charged in the second indictment, and upon which he has been tried and convicted, it by no means follows, as contended for by the counsel for the prisoner, that such verdict of acquittal forms a bar to the trial upon this indictment. ,

It is claimed by the plaintiff in error that his arraignment and trial upon this second indictment is an infraction on the 5th Article of the Amendment to the Constitution of the United States, which declares that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” This provision is a fundamental maxim in criminal jurisprudence. It is derived from the ancient and well-established principles of the common law, was ratified by magna charta, and is now firmly established by our national constitution. When this principle is invoked as a bar to further proceedings in a criminal prosecution, the inquiry arises, has the party in fact been already put in jeopardy for the same offense ? To sustain the plea of a former acquittal, it must appear that the party was “put in jeopardy” by the former trial; thus, if the indictment upon which he had already been tried was so defective that no judgment could have been given upon it, it would not at common law constitute a bar. People v. Barrett, 1 Johns. 66; Russ. on Cr. 836; Burns v. People, 1 Park. Cr. 182.

Our Revised Statutes, however, provide that, “ When a defendant shall have been acquitted of a criminal charge, upon trial, on the ground of a variance between" the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same offense.” 2 R. S. 701, § 24. “ But where a defendant shall have been acquitted upon trial, on the merits and facts, and not upon any ground stated in the last section, he may plead such acquittal in bar of any subsequent accusation for the same offense, notwithstanding any defect in form or in substance, in the indictment upon which such acquittal was had. Id. § 25. But such former acquittal will not be a bar, if the court had no jurisdiction to try the offense (1 Russ. on Cr. 836), or if the jury had been discharged without rendering a verdict (Commonwealth v. Bowden, 9 Mass. 494; United States v. Perez, 9 Wheat. 579), or if there has been a failure of the trial for any other cause. Commonwealth v. Roby, 12 Pick. 496.

But the plea in the present case presents the ground of acquittal on the former trial in the very words of section 24, above quoted, viz: on the ground of a variance between the indictment and the proof. We are, therefore, admonished by this clear and explicit declaration of the statute, that an acquittal upon such ground forms no bar to a trial and conviction upon a subsequent indictment for the same offense. This plain provision of the ^statute law of the State disposes of the plea in bar interposed by the prisoner, and shows it was proper-! :ly overruled.

It is claimed by the prisoner that both indictments were in fact for the same offense. Bat we deem it unnecessary to pass upon this question.

The judgment should be affirmed.

A majority of the court concurred.

Judgment affirmed.