In re Bennett

• Decision Date: 13 December 1897
• Docket Number: 11,393.
• Citation: 84 F. 324
• Court: U.S. District Court — Northern District of California
• Parties: IN re BENNETT.

84 F. 324

IN re BENNETT.

No. 11,393.

United States District Court, N.D. California.

December 13, 1897

D. M Conner, for petitioner.

DE HAVEN, District Judge.

The application for the issuance of a writ of habeas corpus herein was ably presented by the attorney for the petitioner in his argument upon the hearing, and I have given to the case stated in the petition careful consideration. It appears from the petition that there was filed in the superior court of Alameda county, in this state, an information charging the petitioner with the crime of an assault with an intent to commit murder. Thereafter, on the 8th day of January, 1895 he was placed on trial in department 4 of that court, upon such information; and a verdict finding him guilty of the lesser offense of an assault with a deadly weapon was returned by the jury. The petitioner then moved for a new trial, which was granted; and the petition charges that thereafter 'without any new or other information indictment, charge, or accusation, and without any new arraignment of your petitioner or new or other plea on his part, he was again put upon trial in said superior court before the same department and judge, upon the said information and charge of assault with intent to commit murder. ' This trial resulted in a verdict of guilty as charged, and thereafter the said superior court, on motion of the petitioner, granted him a new trial, on the sole ground that he had been twice put in jeopardy for the higher offense of which he had been convicted. This order was reversed by the supreme court of the state of California (45 P. 1013), and the cause remanded to the superior court of Alameda county, which then, in obedience to the judgment of the supreme court, sentenced the petitioner to serve one year in the penitentiary, as punishment for the crime of an assault with intent to commit murder, and this latter judgment has been affirmed by the supreme court of the state. 50 P. 703.

It is proper in this connection to say that the petitioner did not interpose, in bar of his second trial for the greater offense charged against him in the information, a special plea of former acquittal of such offense; and it was for the failure so to do that the supreme court held that under the Penal Code of the state, as construed by it, he was properly convicted of such higher offense, notwithstanding his prior acquittal, and in its discussion of the general question that court said:

'The fact that the first trial was had in the same court and before the same judge as the second trial in no way excused the necessity of the plea of once in jeopardy. ' People v. Bennett, 114 Cal. 56, 45 P. 1013.

The petitioner is now imprisoned under the judgment of conviction above referred to, and he claims that his conviction of the crime of assault with intent to commit murder, under the circumstances above stated, deprives him of rights guarantied to him by the fourteenth amendment to the constitution of the United States. There can be no doubt that the verdict of the jury rendered upon the first trial of the petitioner, finding him guilty of the lesser offense, of an assault with a deadly weapon was in legal effect, an acquittal of the higher offense charged in the information filed against him, and of which the defendant at present stands convicted. That such is the legal effect of that verdict may now be considered as settled beyond all question. People v. Gilmore, 4 Cal. 376; People v. Gordon, 99 Cal. 227, 33 P. 901; Com. v. Herty, 109 Mass. 348; State v. Belden, 33 Wis. 121; State v. Martin, 30 Wis. 216; State v. Hill, id. 416; State v. Kattlemann, 35 Mo. 105; State v. Ross, 29 Mo. 32; Johnson v. State (Fla.) 9 South. 208; Golding v. State (Fla.) 12 So. 525. Such being the law, it is clear that the petitioner is now under conviction and suffering imprisonment for an offense of which he was acquitted by the verdict of a jury; and the further fact, alleged in the petition, that such conviction occurred in the same court and upon the same information upon which the former verdict of acquittal was rendered, at once raises the question whether such conviction is in violation of that provision of the fourteenth amendment to the constitution of the United States which declares that no state shall deprive any person of life, liberty, or property without due process of law.

In speaking of what is meant by the phrase 'due process of law,' the supreme court of Mississippi, in Brown v. Levee Com'rs, 50 Miss. 468, used this language:

'It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law."

The right of a person, after acquittal by a jury, to be exempt from the jeopardy of being again placed on trial in the same court, and upon the same indictment, for the identical offense of which he has been acquitted, is certainly one of the fundamental rights which has always been recognized by our system of jurisprudence as belonging to the citizen; and, unquestionably, the guaranty of due process of law, found in the fourteenth amendment to the constitution of the United States, was intended, among other things, to secure to the citizen this right, and deprives the state of authority to convict and punish a person for a crime of which he has been duly acquitted by a jury, when the fact of such former acquittal is made to appear to the court before which he is again put in jeopardy for the same offense. Ex parte Ulrich, 42 F. 587. See, also, Ex parte Lange, 18 Wall. 163.

The judgment of the court under which the petitioner is now imprisoned is in violation of the constitutional rights of the petitioner as thus defined, and, in my opinion, is void in the extreme sense. After the petitioner was acquitted of the higher offense charged in the information, the superior court of the county of Alameda had no jurisdiction to again place him upon trial for such offense, upon the same information, or to require him to enter any further plea in order to preserve his constitutional right of protection against a second trial for that offense; and, if there is any statute of the state which attempts to confer upon the courts of the state such a jurisdiction, it is, in so far as it attempts so to do, clearly repugnant to the provision of the fourteenth amendment to the constitution of the United States, before referred to, and therefore void. If his acquittal had taken place in some other court, or upon another information or indictment in the same court, it would have been incumbent upon the petitioner, in order to avail himself of his constitutional right of protection against being twice placed in jeopardy, to have specially pleaded such defense, and upon the trial to have exhibited evidence in support thereof, for in no other way could the court have been judicially informed of the facts, constituting a bar to a second trial; but, in the proceeding in which the petitioner was convicted, no such plea or evidence was necessary, because the court itself was bound to take judicial notice of every step shown by its own record to have been taken in the prosecution of the case before it,-- notice not only of the petitioner's arraignment, and of his plea upon such arraignment, but also of the verdict rendered upon the former trial of the same case, and entered upon the record of the court as a perpetual memorial of its rendition;...