United States v. Van Vliet
| Decision Date | 23 February 1885 |
| Citation | 23 F. 35 |
| Parties | UNITED STATES v. VAN VLIET. |
| Court | U.S. District Court — Eastern District of Michigan |
S. M. Cutcheon, Dist. Atty., for the United States.
I. T. Cowles, for defendant.
Upon the original argument I sustained this demurrer, upon the ground that the act of 1878, fixing the amount which pension agents were entitled to charge for their services, had been repealed by the act of July 4, 1884, without saving the right to prosecute for offenses committed prior to the repealing act. U.S. v. Van Vliet, 22 F. 641. Since then my attention has been called to section 13 of the Revised Statutes, which enacts that 'the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly, provide; and such statute, shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. ' This section escaped the notice both of court and counsel. I consider it a complete answer to the demurrer. It was at one time doubted whether it applied to criminal prosecutions, but the case of U.S. v. Ulrici, 3 Dill. 532, and U.S. v. Barr, 4 Sawy. 254, have apparently put the question at rest. The case of U.S. v. Tynen, 11 Wall. 88, was decided in view of the law in force before the act of February 25, 1871, which first contained this section, was passed.
There is no legal objection to the rearrest of the defendant. The constitutional provision, that no person shall 'be subject for the same offense to be twice put in jeopardy,' has no application until a jury has been impaneled and sworn. 1 Bish.Crim.Law, (5th Ed.) §§ 1014-1016. The very case presented by the record here is thus stated by Mr. Bishop, (section 1027:)
'For example, if, without a trial, the court quashes a valid indictment, or gives the defendant judgment on demurrer, under the erroneous belief that it is invalid, a trial may be had after the prosecutor has procured the reversal of this judgment, because, as we have already seen, the prisoner is not in jeopardy until the jury is impaneled and sworn.'
The motion of the district attorney for a capias is therefore granted.
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