People v. Webb

Sawyer, C. J., also delivered the following concurring opinion :

I am satisfied that the principle established by the authorities is, that the jeopardy attaches, within the meaning of the constitutional provision (subject, however, to some limitations or qualifications stated by Bishop in his work on Criminal Law, as deduced from the authorities), whenever, upon a valid indictment, a jury has been impanelled, sworn and charged with the case (1 Bish. Crim. Law, Sec. 658, et seq; Whart. Am. Crim. Law, Sec. 590); and that whenever the jeopardy has once attached against a party, the constitutional immunity has also attached, and it cannot be defeated without the act or consent of the party in jeopardy. Bishop well expresses the result of the decisions, thus: “ But without the consent of the party upon whom the jeopardy has attached, no step in the proceedings against him can be *481 taken backward. If, through misdirection of the Judge in matter of law, or mistake of the jury or their refusal to obey the instruction of the Court, or any other like cause, a verdict of acquittal is improperly rendered, it can never afterward, on application of the prosecutor in any form of proceeding, be set aside and a new trial granted. ”

This construction of the constitutional provision, however, is not entirely satisfactory to my mind. It is difficult to see how the party can claim to have been in jeopardy, within any reasonable signification of the terms employed in the Constitution, when the very evidence which would tend to put him in jeopardy has been, on his objection and demand, erroneously excluded by the Court. The result is, that a criminal may escape conviction by means of an erroneous ruling excluding competent evidence, made at his request, and then avail himself of the acquittal thus erroneously obtained through his own wrong, to defeat a further prosecution of the indictment. But the construction of the constitutional provision was settled by a uniform course of decisions long before it was adopted in this State, and it must be presumed that the construction put upon it was intended to be adopted with the language construed. Such is the rule of construction in relation to Constitutions and statutes.

Whether.the established construction is right or wrong, it will now be unprofitable to inquire further, for I should not feel at liberty to depart from it. The conclusion attained on this point renders it unnecessary to discuss the other questions presented by the record.

The judgment must, therefore, be affirmed.