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 278 a verdict of a less offense under 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

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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 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.