38 Cal. 467, People v. Webb

Citation:38 Cal. 467
Opinion Judge:SPRAGUE, Judge
Attorney:Jo Hamilton, Attorney General, for Appellants. Haymond & Stratton, for Respondents.
Judge Panel:JUDGES: Sprague, J., delivered the opinion of the Court. Sawyer, C. J., also delivered the concurring opinion. SAWYER
Case Date:October 01, 1869
Court:Supreme Court of California

Page 467

38 Cal. 467



GEORGE W. WEBB, Respondent

Supreme Court of California

October, 1869

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Appeal from the County Court of Sonoma County.


Jo Hamilton, Attorney General, for Appellants.

The declaration " that no person shall be subject for the same offense to be twice put in jeopardy of life or limb," as enunciated in Article V of the Amendments to the Federal Constitution, and in Section 8 of the Constitution of this State, " that no person shall be subject to be twice put in jeopardy for the same offense," has been passed and decided upon by not only all the Courts of our country, but, I may say, by almost all of the Courts of the civilized world. I frankly admit that if we take the weight of authority or the volume of precedents as guides in our examination of this question, that the opinions I insist upon here will be found to stand single and unsustained, while the weight of the authority of ages will be found on the other side. The modern decisions, following the beaten track of precedent, will also be found against me; but whether those modern decisions have the concurrence of the same reasons to sustain them as the ancient, is a matter of grave doubt.

The reason of this rule at first was apparent; originally an appeal, or a new trial, or a retrial in a criminal proceeding, was unknown. In the early days of criminal jurisdiction, the defendant who was convicted, by the nisi prius Court, of crime, however gross the error committed by the Court in his trial, or however outrageous the judgment, from fraud, perjury, accident or mistake, had no other escape from punishment than the exercise of what was called clemency, pardon, exoneration from punishment by the exercise of mercy from the Crown. The benefit of clergy might, in some instances, be claimed, and this, when not applicable to his case, or when exhausted by him, was all the protection the defendant had. We see the wisdom of the original rule laid down--that no one should be " twice put in jeopardy." This rule was then understood to mean that no one could be twice tried. The discharge of a jury without a verdict operated as an acquittal. The defendant could not be again tried, and any escape of the defendant, having been once on trial, was a final disposition of the case. So, also, any conviction of the defendant, once upon trial, however arrived at, was final. This was in the early and harsher days of the rule of the law, and, like the wager of battle, the test of witchcraft (sink or swim--if the subject sank and was drowned, she was no witch; if she swam, she was a witch, and was only burned), have, from reason and necessity, grown into disuse and disfavor, from the fact that while they may have satisfied the crude views and superstitions of the fathers, they fall far behind the march of modern civilization. They are relics of that barbarous age which gave the very life of the vassal, and even the person of his newly married wife, into the power and keeping of his paramount lord.

As civilization advanced, and the evils of a too stringent application of the criminal law made themselves apparent, a right of appeal was given the defendant in criminal cases, so that errors of law might be remedied. New trials were then unknown; the remedy was by appeal, and only on questions of law. New trials in criminal cases are of later date, and are an advance of one additional step toward our present system of jurisprudence. In many of the other States of our Union, and, indeed, I may say all of the States whose decisions are quoted in the respondent's brief, the right of appeal is not given the State at all. Our own statute (see Art. 2068, Sec. 481, Vol. 1, p. 299, Hittell's Digest) provides that " the party aggrieved in a criminal action, whether that party be the people or the defendant, may appeal as follows: * * * To the Supreme Court, from a final judgment of the District Court, in all criminal cases amounting to a felony, on questions of law alone, etc., etc.

The right to appeal on the part of the people is given by the statute, and is clearly a right in this case, unless inhibited by the clause in the Constitution cited.

The meaning of this clause in the Constitution is to be determined like the meaning of any other law.

The general rule in giving construction to clauses in the Constitution is, " that they are to be expounded in the same way and according to the same rules as the statutes, only, being popular instruments, a less technical construction is to be given to their words and phrases." Bishop, Criminal Law, Vol. 1, 66; Manly v. State, 7 Md. p. 135; Greencastle Township v. Black, 5 Ind. 557; State v. Mace, 5 Md. 337.)

I suggest to the Court that construing the Constitution by the rule here declared, and which consorts with the standard works upon constitutional law, that the precedents cited, as well as the reasons upon which they are based, are bound to fall to the ground.

Under the enlightened and more liberal practice in modern times, a criminal defendant has many advantages not known in the earlier criminal practice. He can testify in his own behalf. He has counsel who can be heard in his own behalf, while formerly his counsel could not be heard in argument at all. If dissatisfied with the judgment, he may move for a new trial; if that be refused, he can appeal, etc.

The reason for the old declaration, that he shall not be put twice in jeopardy, still remains; but the question as to how the term " jeopardy" is to be construed is, from the change in the system, different.

The provision that no one should be " put in jeopardy twice for the same offense," originally was founded in mercy, and was intended as a merciful interposition in behalf of one accused of crime. His jeopardy commenced when the jury were sworn. Why? Because then his danger commenced. It ended when the jury was discharged. Why? Because then his danger ceased; the verdict of the jury was the finality. But when the right of new trial and appeal was allowed a defendant, the jeopardy did not cease; the danger was not over when the jury were discharged. If he was convicted, he had still his further remedy of retrial and appeal. The law, in further tenderness, said that he might have still a further opportunity of acquittal, and it held if his appeal was successful, for error committed against him, that he was not in jeopardy from the improper conviction, because of the error which had gotten into his trial, and the judgment, when reversed, or a new trial, if given, placed the parties back where they were before the trial, with all the rights of a trial de novo.

Haymond & Stratton, for Respondents.

The principle of the rule against a " second jeopardy," is that the jury and not the judge is to determine when the attack of the State upon life or liberty shall cease. Its reason, the safety of the citizen. And the authorities which sustain this view of the rule, the adjudged cases of every land in which it obtains. Respondent invokes the protection of this rule, and his construction of it must be adopted, for it accords with the trinity of the law--Principle...

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