Ex parte Snyder

• Decision Date: 09 February 1888
• Parties: EX PARTE JOHN SNYDER.
• Court: Kansas Court of Appeals

29 Mo.App. 256

EX PARTE JOHN SNYDER.

Court of Appeals of Missouri, Kansas City.

February 9, 1888

PETITION for writ of habeas corpus.

Discharge of prisoner refused.

The case is stated in the opinion.

MCNEIL & FARRAR, for the petitioner.

I. Habeas corpus is the proper remedy where the error is patent on the face of the record. Ex parte Page, 49 Mo. 291; Ex parte Toney 11 Mo. 662. It is the proper remedy where, though the original imprisonment was lawful, yet, by some act, omission or event, which has taken place afterwards, the party has become entitled to his discharge; or where the jurisdiction of the trial court has been exceeded, either as to matter, place, sum, or person. Rev. Stat., sec. 2650; Ex parte Snyder, 65 Mo. 58.

II. It is the imperative duty of this court to hear this petition. In re McDonald, 19 Mo.App. 373, 374. This court has the same power in habeas corpus that the Supreme Court would exercise. Ex parte Renshaw, 6 Mo.App. 474; Ex parte Jilz, 64 Mo. 205, 211. Over the subject of habeas corpus the jurisdiction of this court is co-equal with that of the Supreme Court, and its judgment just as conclusive. In re McDonald, 19 Mo.App. 370, 373.

III. The jurisdiction of the criminal court over the person of the petitioner for the purpose of trial was exhausted when the verdict was returned by the jury in the second trial, unless the defendant should waive the constitutional provision in regard to being put in jeopardy a second time, and this the defendant has never done.

IV. The writ of habeas corpus in this case does not serve the purpose of a writ of error. The petitioner was in jeopardy on his said second trial, and this verdict being set aside by the court on its own motion, and said order not being changed during the term, the petitioner was entitled to his liberty when the last term of the criminal court closed on December 31, 1887, and on that date there was no final judgment from which an appeal could be taken or writ of error issued.

V. No person shall be subject for the same offence to be twice put in jeopardy of life or limb. Const. U.S. amend. 5; 1 Bishop Crim. Law (6 Ed.) sec. 1043. A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon an indictment which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; and a jury is said to be thus charged when they have been empaneled and sworn. The State v. Hays, 78 Mo. 600, 605, 606; Co??ley Const. Lim. 326, 327, and note, 10. Defendant may have a new trial, but the government cannot. Rev. Stat., sec. 1965; 1 Bish. Crim. Law (6 Ed.) secs. 992, 1026.

VI. Defendant, only, can waive the constitutional provision in regard to being put in jeopardy a second time, the prosecuting power cannot. 1 Bish. Crim. Law (6 Ed.) sec. 1001. The court cannot change its order of record setting aside the verdict at the second trial, since the term has closed. Ashby v. Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo. 584; Brewer v. Dinwiddie, 25 Mo. 351

PHILIPS P. J.

The petition, and accompanying papers, and the return of the marshal of Jackson county, disclose the following state of facts: At the May term, 1887, of the Jackson county criminal court the petitioner was indicted by the grand jury in and for said county for the offence of an assault with intent to commit a rape. On a trial had thereon, at said term, the jury failed to agree and were discharged. At the succeeding term of said court, to-wit, on the fifteenth day of September, 1887, petitioner was again put upon his trial, and the jury returned into court the following verdict: " We the jury find the defendant guilty, and assess his punishment at six months in the county jail." Thereupon without any motion, either by the prisoner or the prosecuting attorney, the court of its own motion ordered the verdict set aside, and further ordered that the jurors therein be forever disqualified as jurors in said court. The court further ordered that the cause be set down for re-trial on the twenty-sixth day of October, 1887. On the day last named the prisoner presented his petition to Hon. Turner A. Gill, judge of the circuit court of Jackson county, setting out the facts aforesaid, and praying for a writ of habeas corpus, to secure the release of the prisoner, on the ground that he could not again be put in jeopardy, as proposed by the second trial of the judge of the criminal court. Judge Gill, on hearing the petition, and the facts, while holding that the further prosecution of the prisoner under said indictment was in contravention of the constitutional right of the prisoner, yet refused to discharge him, as he was amenable to punishment under the verdict returned by the first jury, and so remanded him to the custody of the marshal. The criminal court thereupon continued said cause to the next regular term, and it was again set for trial on the tenth day of January, 1888. At this date the defendant filed his plea, in the nature of a plea in bar, setting up the former trial and proceedings under said indictment. The court thereupon reset the cause for trial on the thirtieth day of January, 1888, when it again proceeded to re-try the prisoner. While permitting the record of the former trial to be read in evidence, the court, nevertheless, instructed the jury to disregard it. The jury returned a verdict of guilty, assessing the punishment at five years in the penitentiary. The court entered up judgment accordingly. Thereupon the prisoner makes this application to this court for his discharge under the writ of habeas corpus.

I. The recognized law of the land is, that no person shall be subject for the same offence to be twice put in jeopardy of life or limb.

So Judge Cooley, in his treatise on Constitutional Limitations (5 Ed.) p. 399, says: " One thing more is essential to a proper protection of accused parties, and that is, that one shall not be subject to be twice put in jeopardy upon the same charge. One trial and verdict must, as a general rule, protect him against any subsequent accusation of the same offence, whether the verdict be for or against him, and whether the courts are satisfied with the verdict or not. * * * A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance, and a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause."

Mr. Justice Story, in United States v. Gilbert, 2 Summer 60, said: " Upon the most mature deliberation, I am of opinion that the court does not possess the power to grant a new trial, in a case of a good indictment, after trial by a competent and regular jury, whether there is a verdict of acquittal or conviction."

While the language of the fifth amendment to the Federal Constitution, respecting jeopardy, does not appear in terms in our state constitution, the principle has ever been recognized by our courts in administering criminal law. So Judge Scott said, in State v. Cowan, 29 Mo. 332: " The constitution forbids that a person shall be twice punished for the same offence." Whether expressed or not in the organic law of the state, it is the recognized law of the land, that the citizen shall not be twice vexed with the same proceedings, or twice put in jeopardy of life or limb. The only effect of such affirmative provisions in constitutions is to make them irrevocable by legislative enactments. As said by Judge Cooley (Const. Law, sec. 37): " In considering state constitutions, we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed."

The provision of the constitution of the state of Arkansas is the same, in the matter under consideration, as ours. Yet the principle that a person once in jeopardy cannot again be put to trial for the same offence obtains in all its force, as herein applied. Lee v. State, 26 Ark. 260. The indictment in this case is admittedly good. No question of its sufficiency is made. The trial proceeded to verdict before a jury regularly obtained and impaneled. The punishment awarded by the jury was pursuant to the instructions of the court, and was within the...