Upon reconvening, the court decided that the indictments could not be well tried together, and discharged the jury from further consideration of them. The prisoner was thereafter tried against his protest before the same jury upon one of the indictments and convicted. He asked leave to file a petition for habeas corpus to obtain his discharge, upon the ground that he had been once in jeopardy with regard to all the offenses charged in the several indictments. The supreme court refused the writ, basing its decision upon the proposition that the trial court had not lost its jurisdiction by the discharge of the jury, and, though error may have been committed, because of the circumstances, in permitting the prisoner to be convicted upon a second trial, it did not go to jurisdiction.

It was further said in the opinion in that case: "If the question had been one of former acquittal-a much stronger case than this—the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and if the identity of the offense were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of former conviction. Clearly in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is error, which may be corrected by the usual modes of correcting such errors.

In Ex parte Ulrich, 43 Fed. 661, it was alleged that the petitioner had been placed on trial before a state court upon an indictment charging bigamy, and that, pending the trial, after the impaneling and swearing of a jury and partial examination of witnesses, the jury was discharged against the prisoner's protest, and another trial was ordered. Thereupon a writ of habeas corpus was sued out by the prisoner in the United States district court and the 273 same was granted. Upon appeal to the circuit court, the order discharging the petitioner was reversed. Circuit Judge Caldwell, in the opinion, said:

"Whether the first jury was discharged without sufficient legal excuse was a mixed question of law and fact, to be determined by the court, or by the court and a jury, if the facts were disputed. It is undeniable that the court had jurisdiction to determine that issue. It was the only court that had

jurisdiction to determine it in the first instance; and, if it be conceded that the court decided the question erroneously, its jurisdiction over the cause was not thereby lost or in any degree impaired, and its judgment was not void, and is not open to collateral attack."

So we find it laid down as a general rule that the defense of former jeopardy or of former acquittal or conviction does not entitle the prisoner to be discharged on habeas corpus: 21 Cyc. 305, and cases cited; 9 Ency. of Pl. & Pr. 632; Church on Habeas Corpus, 2d ed., sec. 253, and note; 1 Bishop's New Criminal Procedure, sec. 821. In the section cited, Mr. Bishop states that a discharge of the jury after jeopardy begun, without verdict or the prisoner's consent, operates in law as an acquittal; and on motion, without plea, he is entitled to be set at liberty, but that should the court refuse, habeas corpus will not lie.

One of the early cases on this subject frequently cited and approved is Wright v. State, 5 Ind. 290, 61 Am. Dec. 90. There it appeared that the petitioner had been put on trial upon an indictment for murder; the trial progressed until a day deemed by the court to be the expiration of the term, and, as the court was satisfied the trial would not be completed on that day, it discharged the jury over the prisoner's objections, and remanded the latter to jail to await trial at the next term. His discharge from custody under the order so committing him was denied on habeas corpus, although it was held that there was former jeopardy. The court conceded the privilege of everyone conceiving himself illegally detained in custody to demand the writ of habeas 274 corpus as a matter of right, but said that it did not follow that the court or judge before whom the cause may be brought can in all cases investigate the merits of the detention. A statute existed in Indiana to the effect that on habeas corpus the legality could not be inquired into of any judgment or process whereby the party is in custody upon a warrant issued upon an indictment or information. The court held that, as the case had not been finally disposed of, and there had not been a release of the prisoner by any judgment of the trial court, he was to be regarded as in custody under the indictment, and habeas corpus could not be employed to discharge him.

The case of Wright v. State, 5 Ind. 290, 61 Am. Dec. 90, has been followed upon this point in an unbroken line of decisions in Indiana, with the single exception of the case of

Maden v. Emmons, 83 Ind. 331, and that case was expressly overruled in Gillespie v. Rump, 163 Ind. 457, 72 N. E. 138. The case of Maden v. Emmons, 83 Ind. 331, was where the jury had dispersed without rendering a verdict, upon discovering after they had retired that one of their number was not a resident of the county. The case of Gillespie v. Rump, 163 Ind. 457, 72 N. E. 138, which was an appeal from a judgment refusing discharge on habeas corpus, disclosed the following facts: After a jury had been impaneled and sworn upon the trial of the petitioner under an indictment charging the crime of murder, the submission was set aside over the objection of the accused to permit the challenge by the prosecution of one of the jurors on the ground of relationship to one of the defendants; the challenge was made and allowed, and a new juror called and sworn, all over the protests of the defendants on trial. The latter thereupon moved their discharge on the ground of jeopardy, and, it being overruled, filed a special plea in bar, which was also overruled. The trial proceeded and resulted in a disagreement of the jury and the remanding of the prisoner for another trial. In that state of the case the writ of habeas corpus was sued out. The judgment refusing to discharge was affirmed, for the reason that the question 275 sought to be raised could not be heard and determined on habeas corpus. The various Indiana cases are reviewed in an instructive opinion.

It is true that the Indiana cases rest largely upon the provision of their statute above referred to, which, perhaps, may be regarded as more strongly prohibitive of questioning the judgment of a competent court than our own statute. It is evident, nevertheless, that the theory of the Indiana cases is opposed to the loss of jurisdiction in the trial court after an irregular or wrongful discharge of the jury. Indeed, in Gillespie v. Rump, 163 Ind. 457, 72 N. E. 138, it is stated in the opinion, that the discharge of a juror and the impaneling of another in his place, even if erroneous, did not deprive the court of jurisdiction and render the subsequent proceedings void. And it seems clear from a reading of that case that a void judgment, apparent on the record, would even, under the Indiana statute, be deemed ground for discharge upon habeas corpus.

Ex parte Maxwell, 11 Nev. 428, was a habeas corpus case before the supreme court of Nevada. The petitioner claimed to be entitled to his discharge because of the discharge of the

jury upon his trial after they had been out but three hours, upon the mere statement of the foreman that they were unable to agree, whereby the proceedings became equivalent to an acquittal. The court upheld the contention as to the unwarranted and illegal discharge of the jury and the effect thereof, but remanded the prisoner on the ground that the order holding him for another trial was not void, but voidable only. It was held that the right to claim former jeopardy might be waived.

A statute like that in Indiana did not exist in Nevada, but the statute of the latter state was said to extend the power of the court in habeas corpus beyond that at common law. Yet it was remarked that the writ was not intended to operate or to have the force of an appellate proceeding, and that the process or authority holding the prisoner must be absolutely void, and not merely voidable, 276 to justify a discharge upon the writ, where the detention is by virtue of legal process.

That a claim of former jeopardy based upon an alleged improper discharge of the jury without verdict will not be determined on habeas corpus is also maintained in Missouri. The principle was announced in an early case where the discharge occurred in the prisoner's absence, and without his consent, after the jury had been out but a few hours: Ex parte Ruthven, 17 Mo. 541. And in another case where a verdict of guilty and fixing a punishment unsatisfactory to the court was set aside by the court on its own motion, and the prisoner held for another trial: Ex parte Snyder, 29 Mo. App. 256. Though there was a statute in Missouri somewhat like the one in Indiana, it is apparent that it was not deemed to take away the right to habeas corpus where want of jurisdiction appeared; and hence the decisions above cited may be regarded as authority, we think, upon the point that the improper discharge of a trial jury does not devest the court of jurisdiction, although it may have resulted in placing the accused in jeopardy. Indeed, in State v. Williams, 117 Mo. App. 564, 92 S. W. 151, it was held that, notwithstanding a party had been in jeopardy and was entitled to be discharged on motion in the trial court, after an improper discharge of the jury pending a previous trial had occurred, yet the court retained jurisdiction, so that prohibition would not lie to restrain further proceedings: See, also, Ex parte Bedard, 106 Mo. 616, 17 S. W. 693.

In Texas, habeas corpus is held not the proper remedy to try the issue of former acquittal, but that the appropriate remedy is by special plea entered in the court wherein the indictment is pending, under which the party is imprisoned: Pitner v. State, 44 Tex. 578; Ex parte Crofford, 39 Tex. Cr. App. 547, 47 S. W. 533. In the Crofford case the defense was raised upon an alleged discharge of the jury in the enforced absence of the accused on trial. The court said: "This is not a novel question in Texas. Since the case of Perry v. State, 41 Tex. 488, the decisions have 277 been uniform that the writ of habeas corpus cannot be resorted to for the purpose of discharging an applicant on a plea of former jeopardy."

However, in Ex parte Davis, 48 Tex. Cr. 644, 122 Am. St. Rep. 775, 89 S. W. 978, the Texas court of criminal appeals had under consideration a case where it was contended that a verdict of not guilty rendered upon a trial of the accused in one county constituted a constitutional objection to a trial for the same offense in another county, there having been a serious question in the case as to venue. The constitution provided that "No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction." The court regarded this provision as distinguishing between jeopardy and a verdict of not guilty in a court of competent jurisdiction; and concluded that after a verdict of not guilty the only way to avoid a second trial, if the same is being proceeded with, is to interpose the writ of habeas corpus; and it was said that the statutes and their decisions gave the court great latitude in the issuance of such writ. The other Texas cases above cited were not referred to, and the doctrine of the case last cited evidently applies only to cases where there may have been an actual verdict of acquittal.

That no inquiry can be had on habeas corpus as to whether the prisoner was present or absent when the jury impaneled and sworn to try him upon an indictment had been discharged from further consideration of the case, or whether such discharge was proper or not, was held in State v. Sheriff, 24 Minn. 87. The court said: "The fact, therefore, if it be one, that the court improperly discharged the jury in the enforced absence of the prisoner, did not dispossess the court of its jurisdiction over the cause." To the same effect, where the