State v. SpearState v. Spear
- Reporters:
Opinion of the Court by
Napton, Judge.Thе appellee was indicted at the February term of 1839, оf the Cape Girardeau circuit court, for selling spiritous liquors to an Indian. The indictment contained two counts; the first of wh‘ich charged, j^that defendant sold a half *645pint of whisky to a cеrtain Indian, whose name was unknown to the grand jurors; and the ‘second charged that defendant gam the said liquor to an Indian, &c. Upon the indictment the defendant was triedj and acquitted by the verdict of a jury, the Statе appealed.
From the bill оf exceptions it appears that after the Statе had given evidence conducing to show one instancе of defendant selling or giving liquor to an Indian, the attorney for thе State desired to give other breaches of the statute committed on the same day, and at the same place, by selling liquor to other Indians. This the court excluded. The court also instructed the jury, that they must be satisfied that the Indian to whom thе liquor was sold or given was a full blooded Indian, and- that the law prohibiting the sale of liquors to Indians did not extend to half breeds.
The counsel for the defendant moves this court to dismiss the appeal, because an appeal does nоt lie for the State in a criminal case.
Whether an appeal to this court lies in a criminal case, as well for the State as for the defendant, I do not deem very matеrial to determine in this case. The statute gives an appeal in criminal cases generally, without any exclusion оf the State from its benefit, and I see no reason why the State should not have an appeal as well as a writ of error, which it is admitted will lie.
But whether the case was brought here by appeal or by writ of error, I hold that the verdict of acquittal is a complete protection to the defendant against any further proceedings. The constitution declаres, (art. 13, sec. 10,) that no person, after having been once acquitted by a jury, can for the same offence bе again put in jeopardy of life or limb. By this provision I understand, that in all criminal prosecutions where a conviction wоuld subject him to capital punishment, or would render him liable tо be restrained from his personal liberty, an acquittal a jury is а complete bar to any subsequent trial. The offence charged in this indictment was punished by fine and imprisonment.
With this view of the case it is unnecessary to investigate *646the prоpriety of the instructions of the circuit court. Its judgment should, in my oрinion, be affirmed.
Tompkins, Judge.I believe the statute gives the State no аppeal, and that it never intended the accused tо be put on his trial a second time after he had been аcquitted. I do not feel well satisfied that the constitution prеcludes the legislature from giving the State the right of appeal in cases of lighter offences.
I concur in every other part of this opinion.