Opinion
November Term, 1865.
Gray, for the prisoner, objected that he could not under such circumstances be indicted a second time for the same offense.
Higgins, Deputy Attorney General. A nolle prosequi may be entered at any time before judgment, and another indictment for the offense be sent up. 1 Whart. Am. Cr. Law 513. 20 Pick. 356. 7 Pick. 179. The former indictment was so radically defective and insufficient for the want of any allegation as to the value of the goods alleged to be stolen, that no judgment or sentence could have been pronounced upon it by the Court, even after a conviction; and after a verdict of acquittal which the Court would have ordered at any stage of the trial as soon as that error had been discovered, it would be no defense under the plea of autrefois acquit in this trial, and when such is the case a nolle prosequi may be entered at any stage of the trial of it, for in contemplation of law the prisoner never was in jeopardy by reason of it. Vaux' Case 4 Rep. 44, 47. 2 Sumn. 42. Arch. Cr. Pl. 82. 2 Hawk. 521. 1 Ch. Cr. Law, 459. 1 Russ. on Crimes, 836.
Gray, for the prisoner. The same fundamental provision of the constitution which guarantees to the accused a trial by indictment or presentment of a grand jury in such a case as this, also guarantees that he shall not be for the same offense twice put in jeopardy of life or limb. Cons. Art. 1, Sec. 8. And the question which rises in this case is, when did that jeopardy begin on the first indictment for the same offense? And the answer to it is, it began the moment the jury was sworn on it to well and truly try the traverse joined and a true verdict give according to the evidence, for it was from that moment charged with the deliverance of the accused on the issue joined in the case. Co. Lit. 227 b. 2 Ld. Crim. Ca. 357. 6 S. R. 586. After the prisoner had been formally arraigned at the bar of the Court for the crime, and had pleaded not guilty to the indictment, and the jury had thereupon been duly empanneled and sworn to try the issue joined in the case, and were so charged with the deliverance of the prisoner upon that issue, he was entitled to a verdict of acquittal on that issue and that indictment, for the Attorney General had no authority or discretion at that stage of the prosecution to abandon the trial, or to discontinue it by entering a nolle prosequi; but having done so at his own instance, and against the admonition of the Court, subject to all exceptions as to the legal effect and consequences of such an entry, it was in law equivalent to a verdict of acquittal, and must be so considered by the Court. United States v. Shoemaker, 2 McLean's C. C. Rep. 114. After the jury is empanneled a nolle prosequi cannot be entered without the consent of the prisoner. 20 Pick. 356. This was distinguishable from Vaux' Case and the others cited on the other side in which it had been held that a second trial might be had after motion and arrest of judgment, and in cases where the indictment was so fatally defective in substance that no conviction could have been sustained, and no judgment entered upon it, and in which it had been held for such reasons that in law the prisoner never had been in jeopardy. In each of thoses cases, however, it would be observed that it was at the instance of the prisoner, of course, that the judgment had been arrested, or the conviction and sentence had been avoided, and not at the instance of the Attorney General or the prosecution. Besides, the prisoner in this case was then wholly without counsel, and non constat had the first trial proceeded that the defect in the indictment would ever have been made known to him, or that any exception would have been taken at any time on his behalf to the invalidity to it. He would further observe that by another provision of the constitution that the prisoner was not only exempt from a second indictment for the same offense, but to a speedy trial on the first one in the case, and it would be contrary both to the letter and the spirit of that provision to hold that the Attorney General has any authority or discretion thus to protract and delay the ultimate trial and final disposition of a case, and to supersede it by another to be begun de novo for the same offense, particularly after the prisoner has got ready and gone to trial, and the jury has been empanneled and sworn in the case.
The Court held that in contemplation of law the defendant had not been put in jeopardy on the first indictment within the true meaning and intendment of the clause in the constitution relied on by the counsel for the prisoner, and overruled the objection to the second indictment.
The prisoner, George Crutch, had been before indicted at this term for the same offense, the stealing of a half-barrel of mackerel, and on arraignment had pleaded not guilty, and after a jury had been duly empanneled and sworn to try the case, but before any witness had been called in it to the stand, the Attorney General had discovered that the indictment was defective, inasmuch as it omitted to allege the value of the property stolen, and with the permission of the Court, but without the consent of the prisoner who had no counsel, entered a nolle prosequi with a view to send up the present corrected indictment for the offense. The Court, however, took occasion to admonish him before the nolle prosequi was entered that it must be done subject to all legal exceptions as to the consequences and the effect it might have at that stage of the trial on another indictment for the offense.