People v. Webb , 38 Cal. 467 ( 1869 )

Spbague, J., delivered the opinion of the Court:

The defendant was indicted for the crime of perjury; the trial was had in the County Court of Sonoma County, at the July Term thereof, 1868, and the jury returned a verdict of not guilty, whereupon the defendant was, by the judgment of the Court, discharged, from which judgment comes this appeal, in behalf of the people, upon the following bill of exceptions, certified by the Judge, and embodied in the record of the action :

“The defendant was tried for perjury. The indictment alleged that he committed perjury on the twelfth day of April, 1867, in testifying in the trial of a cause in which G. W. Webb was plaintiff and L. M. Warden was defendant. On the trial, the District Attorney offered the record on the trial of Webb v. Warden in evidence; defendant objected, on the ground that the record showed that the trial came off on the 11th April, 1867, whereas the indictment charged the crime to have been committed on the 12th of April, 1867. The Court sustained the objection, and the District Attorney excepted. The Court then instructed the jury to find the defendant not guilty, on the ground that there was no evidence showing that such a trial as Webb v. Warden ever transpired. The jury returned a verdict of not guilty. The District Attorney then moved the Court for an order remanding the prisoner to the custody of the Sheriff, to await the action of another Grand Jury, upon the ground that the acquittal was solely by reason of a variance between the proof and the indictment, and that a new indictment might be prepared. The Court overruled said motion and discharged the prisoner from custody, to which ruling the District Attorney duly excepted.”

Upon this bill of exceptions, the attorney for the people assigns the following errors, for which he asks that judgment be reversed, and the cause remanded for a new trial:

First—The Court erred in sustaining the objections of defendant to the introduction in evidence of the- records of the trial of' Webb v. Warden, named herein.

Second■—The Court erred in instructing the jury to find the defendant not guilty.

Third—The Court erred in refusing to remand the defendant, and hold him to await the action of another Grand Jury.

If the ruling of the Court was correct, in rejecting the offered evidence, it was clearly right in its instruction to the jury, and its refusal to remand the defendant to the custody of the Sheriff; this was not a case of “variance between the proof and the indictment,” in the sense contemplated by the 431st Section of the Criminal Practice Act, but a case where there was an entire want of evidence tending to establish the offense charged in the indictment, or any other offense.

The three assignments of error, then, are resolved into the simple question, whether the Court erred in excluding the offered evidence. But so far as the result of this appeal is to be affected, it is claimed on behalf of respondent that it is entirely immaterial whether, in rejecting this evidence, the Court below correctly or erroneously ruled, as the defendant having been once tried upon a valid indictment before a competent Court and jury, and acquitted, is forever protected from a re-trial on the same indictment, or any other indictment for the same offense, by virtue of that clause of Section 8, Article I, of our State Constitution which declares that “no person shall be subject to be twice put in jeopardy for the same offense.”

The question thus presented is of most grave importance, and, so far as we are advised, has never been directly passed upon by this Court; hence, we have given it a most patient consideration, and after a careful examination of the authorities as to the construction of similar provisions in the Constitutions of other States, and the Constitution of the United States, we are entirely satisfied that this Court has no authority in criminal cases, under our State Constitution, to order a new trial of a defendant, at the instance of the prosecution, for mere errors in the ruling of the Court during the progress of the trial, after-the jury have been charged with the case, and have rendered a verdict of not guilty. No case has been called to our attention, and after a most diligent examination of authorities, we have not been able to find a single American case where a re-trial has been ordered or sanctioned by an appellate Court, at the instance of the prosecution, after the defendant had been once put upon his trial for an alleged felony, upon a valid indictment, before a competent Court and jury, and acquitted by the verdict of such jury; but we find a vast number of adjudications of the highest judicial tribunals of the different States, and many of the Federal Courts, to the effect that no such re-trial is authorized by the common law, and is directly interdicted by the Constitution of the United States, and also of most of the several States. The universal maxim of the common law of England, as Sir Wm. Blackstone expresses it, “that no man is to be brought into jeopardy of his life more than once for the same offense, is embraced in Article V, of Amendments to the Constitution of the United States, and in the' Constitutions of several States, in the following language: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” and in many other States the same principle is incorporated in the organic law, in language substantially the same as hereinbefore quoted from the Constitution of this State. While the Constitutions of some few States are destitute of this or any similar provision, other State Constitutions, such as of New Hampshire, Rhode Island, New Jersey and Iowa, merely interdict a second trial for the same offense after acquittal.

The construction of this constitutional provision was well settled by a uniform course of decisions long before its incorporation into our State Constitution; hence, we must presume the provision was incorporated and adopted with a full knowledge of the judicial interpretation which similar provisions in other previous Constitutions had uniformly received, and with intent to adopt such interpretation as a principle expressed in the organic law of the State. (People v. Coleman, 4 Cal. 50; Taylor v. Palmer, 31 Id. 254.)

Again, in the application of this principle, it is upon reason and authority quite as well established, that when a party is once placed upon his trial for a public offense, on a valid indictment, before a competent Court, with, a competent jury, duly impanelled, sworn and charged with the case, he has then reached and is placed in the jeopardy, from a repetition of which, upon the same indictment, or any other indictment for the same offense, this constitutional shield forever protects him, and after the jeopardy has once so attached, a discharge of the jury, without the consent of the defendant, for any cause within the control'of the Court, before they have rendered a verdict, is equivalent to a verdict of acquittal. (State v. McKee, 1 Bailey, 651; Commonwealth v. Cummings, 3 Cush. 212; State v. Kittle, 2 Tyler, 471; State v. Davis, 4 Black. 346; State v. Bouche, 5 Id. 154; State v. Johnson, 8 Id. 533 ; Commonwealth v. Wade, 17 Pick. 395; Weinzorpflin v. State, 7 Black. 186; Wright v. State, 5 Ind. 290; Esmon v. State, 1 Swan, 14; Campbell v. State, 9 Yerg. 333; State v. Reynolds, 4 Hayw. 110; State v. Waterhouse, 1 Mart. and Yerg. 278; Slaughter v. State, 6 Humph. 410; Mahala v. State, 10 Yerg. 535; State v. Taylor, 1 Hawks, 462; State. v. Martin, 3 Id. 381; State v. Riley, 2 Brev. 444; State v. Wright, 3 Id. 421; State v. Hand, 1 Eng. 169; State v. Denton, Id. 259; State v. Burris, 3 Tex. 118; People v. Comstock, 8 Wend. 549; People v. Corning, 2 Coms. 9; State v. Brown, 16 Conn. 54; State v. Anderson, 3 Smede and Marsh, 753; State v. Spear, 6 Mo. 644; State v. Baker, 19 Id. 683; State v. Callendine, 8 Iowa, 290; State v. Kanouse, 1 Spenc. 115; State v De Hart, 2 Halst. 172; Commonwealth v. Cook, 6 Serg. and R. 578; Ned v. State, 7 Porter, 188; People v. Dill, 1 Scam. 257; Commonwealth v. Harrison, 2 Va. Cases, 202; United States v. Gibert, 2 Sumn. 37; United States v. Shoemaker, 2 McLean, 114; 1 Chitty Cr. L. 657-8; 2 Russell on Crimes, 726; Arch. Cr. Pl, 619 ; 2 Whart. Am. Cr. L. Sec. 3054; 1 Id. 590; 1 Bish. C. L. Secs. 658, 660, 665; 1 Gr. and Wa. on N. T, 505-6; People v. Gilmore, 4 Cal. 376 ; People v. Backus, 5 Id. 278.)

The interpretation of this provision of our State Constitution urged by the Attorney General, is in direct conflict with the foregoing authorities; and upon the point with reference to the statutory authority conferring upon the attorney of the people the right to his bill of exceptions, and of appeal from the judgment of the trial Court, Mr. Bishop, after a very full reference to authorities, remarks: “A legislative provision for the re-hearing of a criminal cause cannot be interpreted to violate the constitutional rule under consideration, whatever be the words in which the provision is expressed. When, therefore, the defendant has been once in jeopardy, the jeopardy cannot be repeated without his consent, whatever statute may exist on the subject. And so the writ of error, or the like allowed to the State, can authorize the State to procure the reversal of erroneous proceedings, and proceed anew only in those cases in which the first proceeding did not create a legal jeopardy. For example, if without a trial the Court quashes a valid indictment, or gives the defendant judgment on demurrer, under the erroneous belief that it is invalid, a trial may be had after the prosecution has procured a reversal of the judgment, because, as we have already seen, the prisoner is not in jeopardy until the jury is impanelled and sworn. (1 Bish. Cr. L. Sec. 665.) And, says Mr. Justice Duncan, in Commonwealth v. Cook (supra), at p. 595, with reference to the proper interpretation of a similar clause in the Constitution of Pennsylvania : “It would be idle and unmeaning, if it merely intended to protect the accused against a second trial, for it is a universal principle, not only in every crime, whatever be its grade, but in personal actions, and in all questions of civil right, that a verdict and judgment is a bar to all subsequent proceedings for the same cause between the same parties or privies. To make that, which was so plain and universal a rule, a solemn article in a Constitution; to introduce it into a bill of rights, declaring that to be one of the great and essential principles of liberty and free government, unalterably established, which was the law in even the most insignificant offense, would be without use or meaning, and would impute to the framers of the Constitution an ignorance of the law, which cannot be justly ascribed to them.”

We are, therefore, of opinion that under our Constitution, which protects a party from a second jeopardy of life, limb, liberty or property, for the same public offense, whatever its grade, a person once placed upon his trial before a competent Court and jury, charged with his case upon a valid indictment, is in jeopardy, in the sense of the Contitution, unless such jury be discharged without rendering a verdict, from a legal necessity, or for cause beyond the control of the Court, such as death, sickness or insanity of some one of the jury, the prisoner or the Court, or by consent of the prisoner; and if such jury render a verdict or be discharged before a verdict, without such legal necessity, controlling cause or consent, the prisoner is forever protected from a re-trial upon the same or any other indictment for the samo offense, unless, at his instance, the verdict be set aside or judgment be reversed; and, further, that the correct interpretation of our statute giving to the prosecutor a right to his bill of exceptions and appeal, when construed with reference to this provision of the Constitution, must be understood to have reference to such errors only as may occur in the preceedings before the legal jeopardy attaches. With these views, it follows that a reversal of the judgment in the present case would be vain and useless, as we are not authorized to direct or order a re-trial.

Judgment affirmed.