Ex parte Zeligson

• Decision Date: 05 April 1930
• Docket Number: A-7462.
• Citation: 287 P. 731,47 Okla.Crim. 45
• Parties: Ex parte ZELIGSON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

287 P. 731

47 Okla.Crim. 45

Ex parte ZELIGSON.

No. A-7462.

Court of Criminal Appeals of Oklahoma

April 5, 1930

Syllabus by the Court.

In the trial of a criminal case after the evidence of either side is closed, if the court deems the evidence insufficient to warrant a conviction, it may advise the jury to acquit the defendant, but the jury are not bound thereby, and may notwithstanding such advice, return a verdict of conviction or may report a disagreement, and, in case they report a disagreement and are discharged because unable to agree, such state of facts does not constitute former jeopardy.

Constitutional immunity from second jeopardy is a personal privilege for the sole benefit of the accused. It may be waived by express consent or by implication from conduct indicative of consent or by failure to claim or assert the right in seasonable time.

The writ of habeas corpus cannot be resorted to for the purpose of discharging a petitioner on the ground of former jeopardy. Such plea must be presented in the trial court, and, if the decision of such court is adverse to the accused, the remedy is by appeal and not by habeas corpus.

Original application for writ of habeas corpus by Julius Zeligson.

Writ denied.

A. F Moss, H. R. Young, and C. A. Warren, all of Tulsa, for petitioner.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen (B. B. Blakeney, Hubert Ambrister, and W. R. Wallace, all of Oklahoma City, of counsel), for respondent.

EDWARDS P.J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is illegally restrained of his liberty by the warden of the state penitentiary at McAlester; that said restraint is under a commitment issued upon a judgment and sentence of the district court of Noble county; that said commitment is void, for the reason that petitioner, in the district court of Noble county on November 30, 1925, was charged by information with grand larceny; that he was tried in March, 1926, and at the close of the state's case petitioner demurred to the evidence and requested an instructed verdict; that the court then instructed the jury to return a verdict of not guilty, and they were placed in charge of the bailiff and retired. They later returned, and informed the court that they could not reach a verdict and were discharged from further consideration of the case without objection from petitioner; that on December 8, 1926, the case again came on for trial. The jury was impaneled, the case was again tried, and a verdict was returned finding petitioner guilty and assessing his punishment at three years in the state penitentiary. The second trial was upon the issue raised by the plea of not guilty, and no plea of former jeopardy was made. An appeal from such conviction was duly taken to, and affirmed by, this court. Zeligson v. State (Okl. Cr. App.) 276 P. 791. In the appeal to this court no contention of former jeopardy was made.

Petitioner asserts that he now claims and relies upon the right and immunities guaranteed under the Fifth Amendment to the Federal Constitution, and disclaims any rights or immunities under the state Constitution. He argues that the action of the trial court in the trial of March, 1926, was an acquittal, and the subsequent judgment is therefore void and a legal nullity, and may be relieved against by habeas corpus, although the plea of former jeopardy was not made; it being petitioner's theory that, after an acquittal, the court thereafter was without any jurisdiction to ever again try petitioner on the same charge, citing various authorities, among them, In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; Bens v. U.S. (C. C. A.) 266 F. 152; Ex parte Glenn (C. C.) 111 F. 257; Ex parte O'Connor, 80 Cal.App. 647, 252 P. 730; Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529, L. R. A. 1915F, 1093; Ex parte Davis, 48 Tex. Cr. R. 644, 89 S.W. 978, 122 Am. St. Rep. 775. Other decisions are also cited, which petitioner asserts in some measure sustains his contention.

This court is committed to the doctrine that former jeopardy and former conviction, to be made available as a plea to bar a further prosecution, must be presented in the trial court, the overruling of such plea being error reviewable by direct attack by an appeal and that the judgment of conviction after jeopardy is a voidable judgment as distinguished from a void judgment; that former jeopardy may be waived by a defendant, and is waived, when not interposed in the trial court or raised in the course of the trial. Petitioner admits that this is the rule announced by the decisions of this court and of many other states, but contends that in so holding the courts are in error; and, while the trial court in this case had jurisdiction of the person of petitioner and of the subject-matter, it lacked the third necessary element to a valid criminal judgment, that is, jurisdiction to render the particular judgment.

Section 21, art. 2 (Bill of Rights), State Constitution, forbids that any person be twice put in jeopardy for the same offense.

Section 2713, Comp. St. 1921, provides: "If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict."

The action of the court in the trial apparently was an attempt to follow this statute. Sections 2617 and 2619, Comp. St. 1921, provide for the plea of former jeopardy. But, since petitioner expressly disclaims any right under the state Constitution, but relies entirely upon the Fifth and Fourteenth Amendments to the Constitution of the United States, we consider his contention in reference to those amendments.

It appears to be well settled that the Fifth Amendment to the Federal Constitution, along with the other of the first ten amendments does not limit the state governments, but operates on the national government alone. The Fourteenth Amendment merely prohibits a state from depriving any person of due process of law, and guarantees the equal protection of the law. In Ex parte Spies, 123 U.S. 131, 8 S.Ct. 22, 24, 31 L.Ed. 80, the court, speaking through Mr. Chief Justice Waite, said: "The first 10 articles of amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national...