Ex Parte Bornee.

• Citation: 76 W.Va. 360,85 S.E. 529
• Court: Supreme Court of West Virginia
• Decision Date: 28 May 1915
• Parties: Ex parte BORNEE.

85 S.E. 529

76 W.Va. 360

Ex parte BORNEE.

Supreme Court of Appeals of West Virginia.

May 28, 1915.

(Syllabus by the Court.)

Habeas corpus by Steve Bornee. Prisoner discharged.

Van A. Barrickman, of Morganton, for petitioner.

Fred O. Blue, of Philippi, and John T. Simms, of Fayetteville, for respondents.

ROBINSON, P. We have before us under the original jurisdiction of this court, proceedings in habeas corpus by which Steve Bornee seeks discharge from the custody of the jailer of Monongalia County. The controlling facts are as follows: Bornee was indicted by a grand jury in the circuit court of the county named, for alleged violation of a certain provision of the laws of this State prohibiting the selling and handling of liquors. Acts 1915, ch. 7, sec. 31. He pleaded not guilty and was put on trial before a jury regularly empaneled and sworn. The trial proceeded to a verdict, which was that the accused was not guilty. But the court, on motion of the State, set aside the verdict of acquittal as contrary to law and the evidence, and awarded the State a new trial, over the objection of the accused. His plea of the former acquittal was rejected, and a discharge from further prosecution on the indictment denied him. He was put on trial before another jury. This jury failed to agree, and the case was continued. Thereupon the accused was committed to the jail of the county, where he has since been, and now is, imprisoned to answer the indictment.

Our constitution forbids that one be twice put in jeopardy of life or liberty for the same offense. That Bornee is held for another trial under the very indictment on which he was once acquitted by the verdict of a jury, is conceded. That it is proposed to try him again for the same offense is plainly apparent. But the statute under which he stands indicted prescribes that the State shall have the right of appeal in all cases arising thereunder. Acts 1913, ch. 13, sec. 22 (Code 1913, c. 32a, § 22 [sec. 1301]). Such right of appeal, if it exists, of course embraces the power of the trial court to set aside a verdict of acquittal. Is the statutory right of appeal by the State constitutional and effective in Bornee's case? In other words, will the recognition of it put the accused in second jeopardy? The answer to this question must depend largely on the determination of what the makers of our constitution meant by the use of the word "jeopardy." If they meant jeopardy as generally understood by the common law and the decisions of the courts prior to and at the time of the adoption of the constitution, the course pursued as to Bornee puts him more than once in jeopardy. If they meant by jeopardy one continuous prosecution through to final judgment, even though on appeal by the State, it would be otherwise. That they meant the former, we can haveno doubt. We may venture to say that the latter idea was unknown in their day.

The provision that no one shall be twice put in jeopardy for the same offense is derived from a principle of the common law. Prior to the formation of our State, Virginia had ever maintained this common-law principle, notwithstanding her constitution did not embrace it and it was not beyond the power of legislative change. It seems needless to say that in English law everywhere the principle was known and its meaning understood. The Constitution of the United States embraced it, as did most of the state constitutions. Whether made constitutional or not, the principle that one shall not be twice put in jeopardy for the same offense had been regarded as a safeguard of individual liberty. Differences there had been as to minor questions arising from its application, but indeed none as to its general meaning and effect. So it stood when West Virginia was formed. The makers of our first constitution embraced it in the bill of rights, thus deeming that it should be put beyond the power of legislative change. Art. 2, sec. 2. The provision without change was retained in our present constitution. Art. 3, sec. 5. From the beginning of this commonwealth, it has been as it stands to-day, constitutional. Prior to its adoption into our constitutional law, it had received a settled construction by the judicial decisions of our own and other courts. That construction was not by any means that jeopardy meant one continuous prosecution, even through appeal by the State, to final judgment.

Nothing appearing in a statute or constitution to change the generally accepted meaning of the terms used, they must be construed according to the general acceptation of their meaning at the time they were used. And says Judge Cooley:

"It must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view in adopting them." Constitutional Limitations (6th Ed.) 74.

Speaking of the provision against a second jeopardy as found in an act of Congress relating to the Philippine Islands, the Supreme Court of the United States said:

"In ascertaining the moaning of the phrase taken from the Bill of Rights it must be construed with reference to the common law from which it was taken." Kepner v. United States, 195 U. S. 100. 24 Sup. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655.

In People v. Webb, 38 Cal. 467, wherein the construction of the second jeopardy provision was involved much as it is here, the court held:

"The settled construction of a constitutional provision made before its adoption into the constitution of this State should be held as the just interpretation thereof."

The framers of our constitution naturally had in mind the Virginia law of the subject. But that was not different from the American understanding that a prisoner was once in jeopardy whenever, upon a valid indictment, a jury in a court of competent jurisdiction was regularly empaneled and sworn to try the issue of his guilt. While we derived the principle from the common law of our English ancestors, yet in American jurisprudence to the time of the adoption of our constitution there had grown up a universally recognized, distinctly American doctrine on the subject. The principle had received sanction as a fundamental one to a degree unknown in the English law. And so with us it still stands to-day. Jurists and publicists there now are who attack the logic of its universally accepted meaning. State v. Lee, 65 Conn. 265, 30 Atl. 1110, 27 L. R. A. 498, 48 Am. St. Rep. 202; dissenting opinion of Mr. Justices Holmes, in Kepner v. United States, 195 U. S. 134, 24 Sup. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655; 5 Journal of Criminal Law and Criminology, 16; 8 Harvard Law Review, 354; 20 Id. 319. Nevertheless, proposed innovations touching the ancient principle as ordinarily understood, are still most jealously regarded. See debates on the bill for appeals by the government in criminal prosecutions, Congressional Record, 59th Congress.

It must be conceded by all, without citation to the innumerable authorities, that at the common law and under the interpretations in American jurisprudence, protection from second jeopardy for the same offense included immunity from further prosecution where a jury in a court having jurisdiction had acquitted the accused of the offense. It has been universally understood that if, in an imprisonment case, an accused is once put on trial upon a valid indictment in a court of competent jurisdiction, before a jury regularly empaneled and sworn, and is acquitted, he is forever discharged of the accusation. Never again can he be prosecuted for the same offense. To do so would again put him in jeopardy. This long recognized meaning of jeopardy is the one embraced in our constitutional provision.

There are other phases of the general subject, some as to which there is diversity of opinion, but we must confine ourselves so far as may be to the concrete case before us. Here we have an accused tried on a concededly valid indictment before a court of undoubted jurisdiction and acquitted by a jury duly empaneled and sworn. The offense charged is one punishable by imprisonment. Yet it is proposed again to try the issue of his guilt. Plainly this is violative of the sense in which the constitution uses the word "jeopardy."

Virginia early by statute gave the accused when convicted a right of appeal. But, though no constitutional barrier interfered, she never innovated on the common law bygiving the State the right of appeal in a criminal case, except in cases relating to the public revenue. It must, however, be remembered that the latter cases involved only fines, not imprisonment. In cases of life and liberty, Virginia steadfastly maintained the principle that one duly acquitted of an offense should not be haled to answer it again in any way. To the time of the making of our constitution in 1872, the new State followed the same understanding of jeopardy and has ever since maintained it. 2 Enc. Dig. Va. & W. Va. 183 et seq. In the framing of the constitution of West Virginia in 1863 and 1872, the right of one to appeal when convicted, was expressly guaranteed. But no right of appeal was given to the State. An appeal by the convicted person, under the idea of waiver by him, was not considered inconsistent with the prohibition against a second jeopardy. But not so as to an appeal by the State. The framers considered that violative of the second jeopardy inhibition. For in imprisonment cases, Virginia has always regarded an appeal by the State as being violative of the principle against second jeopardy. Moreover, in American law it was the general interpretation that an appeal by the State in a life or liberty case, after one jeopardy of the accused had attached by the empaneling and swearing of a jury, was violative of the principle against second jeopardy. So, when the framers made...