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 flatly 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 trial 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.

88; Whitten v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. Rep. 297, 40 L. ed. 496. In the case last cited it was said with reference to a contention that there had been a previous disposition of the offense charged in another court: "Whatever effect it (the other proceeding) might have, if pleaded to a subsequent indictment, affords no ground for his discharge on habeas corpus."

The supreme court of the United States, however, has had occasion to distinguish between the case of Ex parte Bigelow, '113 U. S. 328, 5 Sup. Ct. Rep. 542, 28 L. ed. 1005, and one where, after one conviction, the accused has been again convicted upon the same indivisible act for the same offense and sentenced upon both convictions: Ex parte Snow, 120 U. S. 274, 7 Sup: Ct. Rep. 556, 30 L. ed. 658. In that case Snow had been charged, convicted and sentenced upon three indictments in Utah charging the offense of unlawful cohabitation. The alleged unlawful cohabitation appeared to have been continuous, but it was divided by the prosecution and grand jury arbitrarily into three periods and an indictment presented covering each period. After serving the sentence upon the first conviction habeas corpus was applied for. The court held that the act throughout the entire period constituted 282 but one offense, and that one conviction and sentence for any part of the period exhausted the power of the court to punish for the offense. Hence, although the constitutional immunity relied upon was the exemption from second jeopardy, the precise ground of the decision was that the court had no jurisdiction to inflict a punishment in respect of more than one of the convictions. This case was followed by In re Hans Neilsen, 131 U. S. 176, 9 Sup. Ct. Rep. 672, 33 L. ed. 118. The petitioner there had pleaded guilty to unlawful cohabitation, and was sentenced to pay a fine and be imprisoned in the penitentiary. After he had suffered the penalty he was put on trial for the crime of adultery with the same woman during the same period covered by the indictment for unlawful cohabitation upon which he had been punished. He was convicted over a plea of former conviction, and again sentenced to the penitentiary. It was held that there had been a double conviction and sentence for one and the same criminal act; and that the last sentence was void as beyond the jurisdiction of the court, the first sentence having exhausted the court's power in the premises. Those cases were deemed to be in line with the leading case of Ex parte Lange, 18 Wall. 163, 21 L. ed. 872.

Am. St. Rep., Vol. 125-67

There may be cases where a prisoner has been discharged on habeas corpus on the ground of former jeopardy, where the question of the right to the writ under the circumstances was not raised. They might be persuasive, but hardly controlling authority where the objection to the use of the writ in such cases is presented. Such a case apparently is State v. Blevins, 134 Ala. 213, 92 Am. St. Rep. 22, 32 South. 637. In that case, however, upon a trial for assault and battery, the court, instead of pronouncing judgment on the charge which was tried, found that the accused was guilty of another crime, viz., assault with intent to ravish the complaining witness, and thereupon bound the accused over for his appearance to answer to the latter charge. It might well be held that the court exceeded its jurisdiction in the premises, although the opinion in the case seems to put the discharge upon the ground of former jeopardy. In view of the facts in the 283 case it appears to be distinguishable from the case at bar and other like cases.

The main reliance of the plaintiff is upon the Oregon case of In re Tice, 32 Or. 179, 49 Pac. 1038, which, upon the facts, more nearly resembles the case before us than any other coming to our notice. In that case the jury was discharged for disagreement on Sunday, and on the same day the defendant was ordered committed pending a retrial. The fact that the committing order was made on Sunday may distinguish that case from the one here. But the court in that case, while apparently not questioning the general rule that an improper discharge of a jury would not ordinarily deprive the court of further jurisdiction, held that the order of discharge on Sunday being a void act, habeas corpus became a proper remedy for the prisoner's discharge. One of the cases cited by the court in support of its conclusion is Maden v. Emmons, 83 Ind. 331, which has since been overruled in Indiana, as above noted. The case of State v. McGimsey, 80 N. C. 377, 30 Am. Rep. 90, also cited, was not a habeas corpus case, but was before the appellate court on certiorari; and that was held a proper remedy for the review of the error complained of in the exercise by the court below of its jurisdiction. The case of Ex parte White, 15 Nev. 146, 37 Am. Rep. 466, which is also cited, depended upon the application of a different principle. There a magistrate had on Sunday received a plea of guilty and entered a sentence of imprisonment. Under such a condition the accused was clearly held under a void judgment, assuming that the court was not authorized to sit or render judgment on Sunday.

Notwithstanding that the Oregon court, for whose opinions we entertain great respect, seems to distinguish the discharge of a jury upon a nonjudicial day from a discharge upon a lawful day for an improper or unauthorized reason, in its effect upon the jurisdiction of the court, we think that the case cited is out of harmony with the general line of decisions respecting the jurisdictional consequences of an unnecessary or irregular discharge of a jury on a criminal trial.

284 We are unable to agree with the reasoning and conclusion of the Oregon case that a void act discharging the jury operates to devest the court of further jurisdiction in the case. As previously suggested, whether the discharge be a void act, because occurring on a nonjudicial day, or improper or unauthorized for any other reason, the trial, through the irregular or unauthorized act, will have come to a close without a verdict, so that, if the act of discharging the jury be held to have been unauthorized and not to have been waived by any act or conduct of the defendant, if a waivable matter, the latter will have been in jeopardy. By such erroneous procedure, however, the court does not devest itself of jurisdiction to hear and determine any further motions, pleas or other applications that may be presented in the case; and even to hold another trial of the case if a plea of former jeopardy should be heard and overruled, although, in doing so, grave error may be committed.

Suppose it to be conceded that the act of the court in discharging the jury was absolutely void. The prisoner is not held under that order, any more than if he should be held under a warrant of arrest or commitment upon a new information. The old information is still pending and undisposed of, and the plaintiff's commitment is for trial thereon. She has already submitted a plea of some kind in bar of another trial, and that plea has been overruled. Let it be assumed that she interposed in defense of the pending charge the former proceedings, or that she will do so. If it be true that those proceedings amounted to an acquittal, then her plea ought to be sustained, and the court has erred or may err in otherwise disposing of it. But the jurisdiction of the court to hear and determine the plea is clear, it seems to us; and the error, if any, in such determination may be reviewed and corrected before the proper court in the mode pointed out by law. It ought not to be considered on habeas corpus, in which proceeding this court has no greater authority than a single justice, or a district judge would have upon a similar application. We are of the 285 opinion that, though it is

possible that the court may have erred, its act in committing the plaintiff was within the legitimate province of the court while acting in a lawful manner; and, by express command of the statute, it is not permissible in this proceeding to question the correctness of the committing order.

For the above reasons we think it not only unnecessary, but improper, to consider the other questions presented; and we are constrained to refuse to discharge the plaintiff from the custody of the sheriff.

Beard, J., and Scott, J., concur.

In Habeas Corpus Proceedings, the court cannot review mere irregularities which do not go to the jurisdiction of the court making the order under which the prisoner is held. The writ is not a corrective remedy, and cannot be made to discharge the functions of an appeal or a writ of error or certiorari, nor is it designed as a substitute for either: See the note to Koepke v. Hill, 87 Am. St. Rep. 172; Younger v. Hehn, 12 Wyo. 289, 109 Am. St. Rep. 986; Martin v. District Court, 37 Colo. 110, 119 Am. St. Rep. 262; Ex parte Knight, 52 Fla. 144, 120 Am. St. Rep. 191.

Habeas Corpus Will Lie, according to Ex parte Davis, 48 Tex. Cr. 122 Am. St. Rep. 775, to prevent the violation of a constitutional provision that no person shall be again put on trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.

An Accused is in Jeopardy when a jury is impaneled and sworn to try him; and if the jury is unnecessarily or improperly discharged without his consent, it has been affirmed that he cannot again be put on trial for the same offense: State v. Ward, 48 Ark. 36, 3 Am. St. Rep. 213; State v. Nelson, 19 R. I. 467, 61 Am. St. Rep. 780; Allen v. State, 52 Fla. 1, 120 Am. St. Rep. 188. But the fact that one accused of a crime is tried before a jury which, in announcing that its members cannot agree, is discharged in his absence, and while he is confined in jail, does not entitle him to be released from custody and further trial on the ground that he has been once in jeopardy: Yarbrough v. Commonwealth, 89 Ky. 151, 25 Am. St. Rep. 524. And where the constitution provides that "if the jury disagree, the accused shall not be deemed to have been in jeopardy," it is within the discretion of the court to determine when a disagreement sufficient to justify a discharge of the jury exists. No specific period for deliberation can be designated, nor any absolute rule laid down, to control this discretion; and unless it has been grossly abused, the objection of former jeopardy is not ground for reversal upon error, much less for discharge upon habeas corpus: In re Allison, 13 Colo. 525, 16 Am. St. Rep. 224.