*

be twice put in jeopardy upon the same charge. One [* 326] trial and verdict must, as a general rule, protect him

against any subsequent accusation of the same offence, whether the verdict be for or against him, and whether the courts are satisfied with the verdict or not. We shall not attempt in this place to collect together the great number of judicial decisions bearing upon the question of legal jeopardy, and the exceptions to the general rule above stated: for these the reader must be referred to the treatises on criminal law, where the subject will be found to be extensively treated. It will be sufficient for our present purpose to indicate very briefly some general principles.

A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information *which is sufficient in form and substance to sus- [* 327] tain a conviction, and a jury has been charged with his

deliverance. And a jury is said to be thus charged when they have been impanelled and sworn.2 The defendant then becomes

19 Ohio, N. s. 269; Remsen v. People, 43 N. Y. 6. Upon the presumption of malice in homicide, the reader is referred to the Review of the Trial of Professor Webster, by Hon. Joel Parker, in te North American Review, No. 72, p. 178. See also upon the functions of judge and jury respectively, the cases of Commonwealth v. Wood, 11 Gray, 86; Maher v. People, 10 Mich. 212; Commonwealth v. Billings, 97 Mass. 405; State v. Patterson, 63 N. C. 520; State v. Newton, 4 Nev. 410.

1 Commonwealth v. Cook, 6 S. & R. 586; State v. Norvell, 2 Yerg. 24; Williams v. Commonwealth, 2 Grat. 568; People v. McGowan, 17 Wend. 386; Mounts v. State, 14 Ohio, 295; Price v. State, 19 Ohio, 423; Wright v. State, 5 Ind. 292; State v. Nelson, 26 Ind. 366; State v. Spier, 1 Dev. 491; State v. Ephraim, 2 Dev. & Bat. 162; Commonwealth v. Tuck, 20 Pick. 356; People v. Webb, 28 Cal. 467; People v. Cook, 10 Mich. 164; State v. Ned, 7 Port. 217; State v. Callendine, 8 Iowa, 288. It cannot be said, however, that a party is in legal jeopardy in a prosecution brought about by his own procurement; and a former conviction or acquittal is consequently no bar to a second indictment, if the former trial was brought about by the procurement of the defendant, and the conviction or acquittal was the result of fraud or collusion on his part. Commonwealth v. Alderman, 4 Mass. 477; State v. Little, 1 N. H. 257; State v. Green, 16 Iowa, 239. See also State v. Reed, 26 Conn. 202. And if a jury is called and sworn, and then discharged for the reason that it is discovered the defendant has not been arraigned, this will not constitute a bar. United States v. Riley, 5 Blatch. 205.

McFadden v. Commonwealth, 23 Penn. St. 12; Lee v. State, 26 Ark. 260; 8. c. 7 Am. Rep. 611. A different view is taken in O'Brian v. Commonwealth, 6 Bush, 563.

entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause.1

If, however, the court had no jurisdiction of the cause,2 or if the indictment was so far defective that no valid judgment could be rendered upon it,3 or if by any overruling necessity the jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the court,5 or of a juror, or the inability of the jury to agree upon a verdict after reasonable time for deliberation and effort; or if the term of the court as fixed by law comes to an end before the trial is finished; or the jury are discharged with the consent of the defendant expressed or implied;9 or if, after verdict against the accused, it has been set aside on

1

1 People v. Barrett, 2 Caines, 304; Commonwealth v. Tuck, 20 Pick. 365; Mounts v. State, 14 Ohio, 295; State v. Connor, 5 Cold. 311; State v. Callendine, 8 Iowa, 288; Baker v. State, 12 Ohio, N. s. 214; Grogan v. State, 44 Ala. 9; State v. Alman, 64 N. C. 364; contra, Swindel v. State, 32 Texas, 102.

2 Commonwealth v. Goddard, 13 Mass. 455; People v. Tyler, 7 Mich. 161. Gerard v. People, 3 Scam. 363; Pritchett v. State, 2 Sneed, 285; People v. Cook, 10 Mich. 164; Mount v. Commonwealth, 2 Duv. (Ky.) 93; People v. McNealy, 17 Cal. 333; Kohlheimer v. State, 39 Miss. 548; State v. Kason, 20 La. An. 48; Black v. State, 36 Geo. 447; Commonwealth v. Bakeman, 105 Mass. 53.

4 United States v. Perez, 9 Wheat. 579; State v. Ephraim, 2 Dev. & Bat. 166; Commonwealth v. Fells, 9 Leigh, 620; People v. Goodwin, 18 Johns. 205; Commonwealth v. Bowden, 9 Mass. 194; Hoffman v. State, 20 Md. 425; Price v. State, 36 Miss. 533. In State v. Wiseman, 68 N. C. 203, the officer in charge of the jury was found to have been conversing with them in a way calculated to influence them unfavorably towards the evidence of the prosecution, and it was held that this was such a case of necessity as authorized the judge to permit a juror to be withdrawn, and that it did not operate as an acquittal.

Nugent v. State, 4 Stew. & Port. 72.

Hector v. State, 2 Mo. 166; State v. Curtis, 5 Humph. 601; Mahala v. State, 10 Yerg. 532; Commonwealth v. Fells, 9 Leigh, 613.

7 People v. Goodwin, 18 Johns. 187; Commonwealth v. Olds, 5 Lit. 140; Dobbins v. State, 14 Ohio, N. s. 493; Miller v. State, 8 Ind. 325; State v. Walker, 26 Ind. 346; Commonwealth v. Fells, 9 Leigh, 613; Winsor v. The Queen, L. R. 1 Q. B. 289; State v. Prince, 63 N. C. 529; Moseley v. State, 33 Texas, 671; Lester v. State, 33 Geo. 329.

8 State v. Brooks, 3 Humph. 70; State v. Battle, 7 Ala. 259; Mahala v. State, 10 Yerg. 532; State v. Spier, 1 Dev. 491; Wright v. State, 5 Ind. 290. State v. Slack, 6 Ala. 676; Elijah v. State, 1 Humph. 103; Commonwealth v. Stowell, 9 Met. 572.

*his motion for a new trial or on writ of error, or the [* 328] judgment thereon been arrested,2 in any of these cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection. But where the legal bar has once attached, the government cannot avoid it by varying the form of the charge in a new accusation: if the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second. And if a prisoner is acquitted on some of the counts in an indictment, and convicted on others, and a new trial is obtained on his motion, he can be put upon trial a second time on those counts only on which he was before convicted, and is for ever discharged from the others.4

Excessive Fines and Cruel and Unusual Punishments.

It is also a constitutional requirement that excessive bail shall not be required, nor cruel and unusual punishments inflicted.

1 And it seems, if the verdict is so defective that no judgment can be rendered upon it, it may be set aside even against the defendant's objection, and a new trial had. State v. Redman, 17 Iowa, 329.

2 Casborus v. People, 13 Johns. 351. But where the indictment was good, and the judgment was erroneously arrested, the verdict was held to be a bar. State v. Norvell, 2 Yerg. 24. See People v. Webb, 28 Cal. 467. So if the error was in the judgment and not in the prior proceedings, if the judgment is reversed, the prisoner must be discharged. See post, p. 330. But it is competent for the legislature to provide that on reversing the erroneous judgment in such case, the court, if the prior proceedings are regular, shall remand the case for the proper sentence. McKee v. People, 32 N. Y. 239. It is also competent, we suppose, in the absence of express constitutional prohibition, to allow an appeal or writ of error to the prosecution, in criminal cases. See State v. Tait, 22 Iowa, 141. Compare People v. Webb, 38 Cal. 467.

3 State v. Cooper, 1 Green, 360; Commonwealth v. Roby, 12 Pick. 504; People v. McGowan, 17 Wend. 386; Price v. State, 19 Ohio, 423; Leslie v. State, 18 Ohio, N. s. 395; State v. Benham, 7 Conn. 414.

Campbell v. State, 9 Yerg. 333; State v. Kettle, 2 Tyler, 475; Morris v. State, 8 S. & M. 762; Esmon v. State, 1 Swan, 14; Guenther v. People, 24 N. Y. 100; State v. Kattleman, 35 Mo. 105; State v. Ross, 29 Mo. 39; State v. Martin, 30 Wis. 219; Barnett v. People, 54 Ill. 331. Contra, State v. Behimer, 20 Ohio, N. s. 572. A nolle prosequi on one count of an indictment after a jury is called and sworn, is a bar to a new indictment for the offence charged therein. Baker v. State, 12 Ohio, N. s. 214.

Within such bounds as may be prescribed by law, the question what fine shall be imposed is one addressed to the discretion of the court. But it is a discretion to be judicially exercised; and there may be cases in which a punishment, though not beyond any limit fixed by statute, is nevertheless so clearly excessive as to be erro

neous in law. A fine should have some reference to the [* 329] party's ability to pay it. By Magna Charta a freeman was not to be amerced for a small fault, but according to the degree of the fault, and for a great crime in proportion to the heinousness of it, saving to him his contenement; and after the same manner a merchant, saving to him his merchandise. And a villein was to be amerced after the same manner, saving to him his wainage. The merciful spirit of these provisions addresses itself to the criminal courts of the American States through the provisions of their constitutions.

It has been decided by the Supreme Court of Connecticut that it was not competent in the punishment of a common-law offence to inflict fine and imprisonment without limitation. The precedent, it was said, cited by counsel contending for the opposite doctrine, of the punishment for a libel upon Lord Chancellor Bacon, was deprived of all force of authority by the circumstances attending it; the extravagance of the punishment being clearly referable to the temper of the times. "The common law can never require a fine to the extent of the offender's goods and chattels, or sentence of imprisonment for life. The punishment is both uncertain and unnecessary. It is no more difficult to limit the imprisonment of an atrocious offender to an adequate number of years than to prescribe a limited punishment for minor offences. And when there exists no firmly established practice, and public necessity or convenience does not imperiously demand the principle contended for, it cannot be justified by the common law, as it wants the main ingredients on which that law is founded. Indefinite punishments

1 The subject of cruel and unusual punishments was somewhat considered in Barker v. People, 3 Cow. 686, in which case the opinion was expressed by Chancellor Stanford that a forfeiture of fundamental rights—e. g., the right to jury trial - could not be imposed as a punishment for crime, but that a forfeiture of the right to hold office might be. In Done v. People, 5 Park. 364, the cruel punishments of colonial times, such as burning alive and breaking on the wheel, were enumerated by W. W. Campbell, J., who was of opinion that they must be regarded as "cruel" if not "unusual," and therefore as being now forbidden by the Constitution.

are fraught with danger, and ought not to be admitted unless the written law should authorize them." 1

It is certainly difficult to determine precisely what is meant by cruel and unusual punishments. Probably any punishment declared by statute for an offence which was punishable in the same way at the common law, could not be regarded as cruel or unusual in the constitutional sense. And probably any new statutory offence may be punished to the extent and in the mode permitted by the common law for offences of similar nature. But those degrading punishments which in any State had become obsolete before its existing constitution was adopted, we think may well be held forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping-post and the pillory in * States [* 330] where they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishments. In such States the public sentiment must be regarded as having condemned them as "cruel," and any punishment which, if ever employed at all, has become altogether obsolete, must certainly be looked upon as "unusual."

A defendant, however, in any case is entitled to have the precise punishment meted out to him which the law provides, and no other. A different punishment cannot be substituted on the ground of its being less in severity. Sentence to transportation for a capital offence would be void; and as the error in such a case would be in the judgment itself, the prisoner would be entitled to his discharge, and could not be tried again.2 If, however, the legal punishment consists of two distinct and severable things, -as fine, and imprisonment, the imposition of either is legal, and the defendant cannot be heard to complain that the other was not imposed also.3

1 Per Hosmer, Ch. J., in State v. Danforth, 3 Conn. 115. Peters, J., in the same case, pp. 122-124, collects a number of cases in which perpetual imprisonment was awarded at the common law, but, as his associates believed, unwarrantably.

2. Bourne v. The King, 7 Ad. & El. 58; Lowenberg v. People, 27 N. Y. 336. See also Whitebread v. The Queen, 7 Q. B. 582; Rex v. Fletcher, Russ. & Ry. 58. In this last case the court was equally divided on the question whether the omission, in a sentence of death, of the subsequent directions which the law provided for, rendered the sentence void. See further, Hartung v. People, 26 N.Y. 167; Elliott v. People, 13 Mich. 365; Ex parte Page, 49 Mo. 291.

3 See Kane v. People, 8 Wend. 203.