The relator was convicted of disorderly conduct. He applied for a writ of habeas corpus and was released on the ground that, although the trial had been properly started on Saturday, since it had not been finished until Sunday, the judgment was void. He has now been again charged with the same offense, on the same information. He seeks release and freedom from a new trial by habeas corpus, on the ground that a new trial would subject him to double jeopardy.
Reliance is placed on the general rule that if a court has jurisdiction and all prior proceedings are valid a prisoner is placed in jeopardy when he has been arraigned and pleaded to a valid charge, a jury has been examined and sworn and evidence given. (1 Bishop on Criminal Law [9th ed.], p. 752.) This rule was evolved and, as far as I know, has been applied only in cases where the jury, without adequate reason, were dismissed before rendering *Page 431 a verdict or where the defendant was acquitted. No reason appears for extending the rule to a case where the defendant has been convicted and by his own acts has had the conviction set aside.
It has never been suggested that where a conviction has been reversed because of error in the trial, a new trial cannot be had. The fact that the reversal or setting aside of the conviction is on the ground that the trial was completed on a Sunday, rendering it void, offers no greater reason for so holding. Where there has been a conviction the situation differs radically from one where the defendant, although in danger of being convicted, was acquitted or might have been acquitted if the jury were permitted to render a verdict.
The relator has been put in danger of conviction. But not only has he been in danger of conviction; he has been convicted. Whether the conviction is set aside on the ground that there were errors on the trial or because the trial was completed on a Sunday, the fact of the conviction eliminates the element of double jeopardy.
It has been held that there is no double jeopardy in a new trial where before verdict was rendered on the original trial the jury was dismissed because the term of the court ended. (Lore v. State, 4 Ala. 173; State v. Jeffors, 64 Mo. 376;Commonwealth v. Thompson, 3 Va. [1 Va. Cas.] 319; State v.Moor, 12 Am. Dec. [Miss.] 541. See State v. Brooks,22 Tenn. 70.) The trial involved in the case at bar was valid until it extended into Sunday. The proceedings thereafter were void. In so far as it was valid there is no essential difference between this case and the cases where the trial terminated because of the end of the term. Are we to permit the relator to escape because the jury was permitted to go on with the case and subsequently found him guilty? On the other hand, if it should be said that continuing the trial into Sunday rendered the entire trial void, then clearly there is no double jeopardy. (People v. Connor,142 N.Y. 130.) *Page 432
There is no reason in law or justice for permitting a man who has been found guilty to escape being retried when he has had the original conviction set aside because of a technical error of the court which rendered the conviction void.
"No case is cited where the verdict of guilty having been set aside, on motion of the defendant, it has been held to bar another trial." (United States v. Keen, 26 Fed. Cas. 686, 688; 1 McLean, 429.) The reason given for not applying the principle of double jeopardy to a retrial after a conviction has been set aside for error is that the defendant by appealing and thereby setting aside the judgment of conviction has by his own act brought about the retrial in place of his conviction and so has waived the defense of double jeopardy. (People v.Dowling, 84 N.Y. 478; People v. McGrath, 202 N.Y. 445. SeePeople v. Palmer, 109 N.Y. 413; People v. Cignarale,110 N.Y. 23.) In the case at bar the relator has been convicted and, by his own act, has had the conviction set aside for error. It is true that this was accomplished by means of a writ of habeas corpus, but why has not the defendant thereby waived his objection to a retrial as completely as if he had set aside his conviction by appeal?
The fact that the relator was discharged by habeas corpus proceedings should not prevent another trial. (See note, 97 A.L.R. 160 and cases cited therein.) To refuse the law-enforcing agencies a new trial and to set free the defendant for the reason that he employed one form of procedure, namely, habeas corpus, rather than an appeal, is to place form and technicality above substance. To this I am unable to agree.
The order of the Appellate Division should be affirmed.
CRANE, Ch. J., LEHMAN, O'BRIEN, CROUCH and LOUGHRAN, JJ., concur with HUBBS, J.; FINCH, J. dissents in opinion.
Ordered accordingly. *Page 433