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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 jurisdic.. tion; 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
jury was discharged for disagreement over the objection of the accused, is the case of Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 1072. In Ex parte Hartman, 44 Cal. 32, whether an arrest of judgment upon a verdict of a less offense un
a der an indictment charging assault with intent to murder constituted jeopardy was held to be a question not competent for consideration in an application for habeas corpus, where the accused, after the arrest of judgment, had been remanded to await the action of the next grand jury upon the charge originally preferred.
In Steiner v. Nerton, 6 Wash. 23, 32 Pac. 1063, a trial jury had been discharged, the indictment quashed, and, later, an information filed upon which the accused was being held for trial. Claiming former jeopardy, he applied for discharge on habeas corpus, but the same was denied, the court saying: “If the petitioner has been before in jeopardy for the same offense, that is a proper plea in bar, to be tried by the court, and from the decision of which an appeal would lie to this court.” A like conclusion was reached in the case of In re Allison, 13 Colo. 525, 16 Am. St. Rep. 224, 22 Pac. 820, 10 L. R. A. 790.
The principle under discussion is further illustrated by cases where the claim of former jeopardy has arisen out of circumstances other than the discharge of a trial jury. In a Colorado case the petitioner for habeas corpus was in jail awaiting trial on a charge of murder. He had been once tried and found guilty of manslaughter, and announced himself ready to receive sentence upon the verdict. The court declined to pass sentence, but, over the objection of the petitioner, ordered the verdict set aside, and a new trial had. A motion for the prisoner's discharge was then made on the ground of former jeopardy, and denied, and he was remanded to await trial. On petition for habeas corpus before the supreme court, it was held that the defense of former jeopardy could not be raised in that proceeding. It was contended by counsel that as all the facts appeared upon the record in respect to the plea, it entitled the party to be heard and to be discharged in the summary proceeding; the court recited a part of the argument and stated its conclusion as follows: “In support of this proposition they urge that in such circumstances, where the petitioner has already moved the trial court for a discharge upon the ground now urged in support of his application, he should not be subjected to another
trial, or the formality of submitting to a jury undisputed questions of fact, the force and effect of which are entirely a question of law. These matters do not change the rule with respect to questions which can be inquired into on applications of this character. It has uniformly been held by this court that in habeas corpus proceedings only jurisdictional questions can be reviewed." The court, in further discussing the question, stated in substance that the trial court had not lost jurisdiction, but was authorized to hear and determine the claim of once in jeopardy, and the question whether there should be another trial, and that, though the court might decide the question erroneously, it would not be devested of jurisdiction, nor would the question be available on habeas corpus: In re Mahany, 29 Colo. 442, 68 Pac. 235.
In re Terrill, 58 Kan. 815, 49 Pac. 158, was a case where a party claimed to have been in jeopardy through a former conviction which had been held void because the trial had occurred when the court was without power to sit. Being held to await another trial, he sought release on habeas corpus. It was held that the question of former jeopardy could not be determined on habeas corpus. To the same effect the following additional cases, where the claim was made after an alleged previous conviction or acquittal : State v. Criminal Sheriff, 45 La. Ann. 316, 12 South. 307; Commonwealth v. Norton, 8 Serg. & R. 72; People v. Rulloff, 3 Park. C. C. 126; Ex parte Barnett, 51 Ark. 215, 10 S. W. 492; State v. Sistrunk, 138 Ala. 68, 35 South. 39; In re Bogart, 2 Saw. 396; State v. White, 71 Kan. 356, 80 Pac. 589; In re Miller, 7 Kan. App. 686, 51 Pac. 922. The case of State v. White, 71 Kan. 356, 80 Pac. 589, was not decided on habeas corpus, but the question of jurisdiction on a second trial was before the supreme court, on error, the jury having been discharged, as claimed, irregularly upon a previous trial. It was contended that, though no plea of former jeopardy had been presented, and no objection made to the second trial on that ground, the facts were in the record 280 and showed the second trial to have been without jurisdiction. The court, however, held otherwise, expressly stating that the district court did not lose jurisdiction; and that by not having objected to the second trial on the ground of jeopardy because of the alleged improper discharge of the jury, the objection had been waived. In the Pennsylvania case of Commonwealth v. Norton, 8 Serg. & R. 72, the petitioners had been found not guilty on nine counts of an indictment containing sixteen counts, the verdict not referring to the remaining counts. Having been afterward committed for trial upon the other seven counts, the prisoners sought their discharge on habeas corpus on the ground that the verdict was in effect an acquittal on the whole indictment. The court refused to discharge for the reason that the court where the indictment was pending had jurisdiction, and if an erroneous judgment should be given the remedy would be by writ of error.
Our investigation of this question has resulted in the discovery of but three cases which appear to be fatly opposed to the principle supported by the array of authorities above cited. One of them, Ex parte Ulrich, 42 Fed. 587, was afterward reversed by the circuit court in the case of In re Ulrich, 43 Fed. 661, above referred to. Another case, In re Bennett, 84 Fed. 324, decided by United States District Judge De Haven, in California, holds that after the reversal of a conviction of a less offense than the one charged a sentence upon conviction of the greater offense upon the same indictment on a second t'rial in the same court is void in the extreme sense, as in violation of the constitutional exemption of the accused from a second jeopardy. A discharge was, however, refused in that case, for the reason that there had not been an acquittal of the less offense. Ex parte Glenn, 111 Fed. 257, decided by District Judge Jackson, in West Virginia, holds that an accused is entitled to be discharged on habeas corpus when committed for a second trial upon an indictment, after such an improper discharge of the jury at the first trial as to render the trial 281 equivalent to an acquittal. The opinion in the Bennett case refers to the case of Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. Rep. 542, 28 L. ed. 1005, above cited, but evidently regarded it as inapplicable. The opinion in the Glenn case does not notice the Bigelow case, nor, indeed, any of the authorities laying down the same doctrine. The fact is that in the Bigelow case the second trial had occurred in the same court upon one of the same indictments involved in the former trial; so that if the proceedings of the former trial amounted to an acquittal upon all the indictments as claimed, the fact appeared upon the record of the court in relation to the indictment under which the second trial was had. It is, therefore, difficult to distinguish the Bigelow case from the Bennett and Glenn cases. That the Bigelow case continues to be regarded as authority by the supreme court upon the question thereby decided is evident from its citation and approval in two subsequent cases: In re Belt, 159 U. S. 95, 15 Sup. Ct. Rep. 987, 40 L. ed.