1 Bur. 119 | Wis. | 1843
The defendant was indicted in the district court of Iowa county for forgery. At the trial the dis
The first question to be settled is, should this court take cognizance of this case ?
The practice of revising cases by appeal and writs of error, on the part of the prosecution, upon various decisions of the inferior court, upon matters of law, is quite common, but not after a verdict of not guilty. In the case of Commonwealth v. McKisson, 8 Serg. & R. 420, the defendants were indicted for a conspiracy to cheat. On motion of the defendants, the indictment was quashed, upon which the commonwealth sued out a writ of error, and the supreme court reversed the decision, and directed that the record be remitted to the court below with orders to proceed on the indictment. In the case of Commonwealth v. Taylor, 5 Binney, 277, it appears that the defendant had been convicted, and the court arrested the judgment on the ground that the offense charged was not indictable; and the record was brought to the supreme court by writ of error, where the judgment was reversed, and the record was remitted to the quarter sessions, that they might proceed to give judgment against the defendant. The same practice is pursued in New York, but in a more formal and technical manner. In the case of People v. Stone, 9 Wend. 182, the indictment, on the motion of the defendant, had been quashed, and at a subsequent session of the court, the district attorney, for the purpose of enabling him to remove the case to the supreme court by writ of error, was permitted to make a record, stating judgment to have been rendered for the defendant as on demurrer to the indictment. The supreme court allowed this proceeding, as no writ of error can be brought in that State on an order quashing an indictment.
In 4 Black. Com. 361, we find it laid down, that there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first. If the jury, therefore, find the prisoner not guilty, he is then forever quit and discharged, except he be appealed of felony within the time limited by law. And upon such acquittal or discharge for want of prosecution, he shall be immediately set at large. Also, in 2 Hawkins’ P. C. 442. In 1 Chit. Crim. Law, 535, it is stated, that a new trial cannot, in general, be granted on the part of the prosecution, after the defendant has been acquitted, even though the verdict appears to be against evidence. No new trial can
It is a ma.Nim of the law, that no one shall be tried twice for the same offense; or, his life or person brought again into jeopardy, where there has once been an acquittal. And the same rule holds throughout, in all cases, upon penal statutes, and upon all indictments and informations for misdemeanors, as well as felonies. State v. Wright, 2 S. C. 517; State v. De Hart, 2 Halst. 172; Overseers
It seems that, in a case where a new trial could be of no benefit to the party, it will not be granted. Duncan v. Dubois, 3 Johns. Ch. 135. The same rule is applicable where a reversal of the judgment is sought upon a writ of error. Now apply this principle to this case. If the prosecution should prevail in this writ, and reverse this cause for the alleged error, it would end there; for the court could not award a venire facias de novo. We could not, on reversal, order our judgment to be certified to the district court with directions to have the defendant apprehended and put a second time on his trial. This would be a violation of every principle of criminal justice. If this practice were tolerated, the court would be required to sign a bill of exceptions, at the instance of a prosecutor, who might be urged to it for purposes of revenge, when the court, in order to afford him the full benefit of his exceptions, would have to retain the defendant, either in custody or under bail, notwithstanding he had been acquitted by the verdict of a jury.
A writ of error is not a continuation of the suit below, because it may be sued out by a new attorney, without obtaining a rule for a change of attorney (7 T. R. 337; 2 Johns. 287; 19 Wend. 152); and in many respects it is considered as a new action (2 Tidd’s Prac. 1196); which we have shown is not allowable in criminal cases. On page 376 of the Statutes is an act to provide for appeals,