dissenting, say :
■ We are of opinion that the weight of authority, both in England, and most of the American States, is that a citizen cannot be twice put in jeopardy of life or liberty for the same ofíense, and that, when a competent court is duly organized and a defendant has plead not guilty to a good indictment, and a jury has been empaneled to try the issue, jeopardy has then attached, and that nothing but his own consent, or unavoidable necessity can authorize a dismissal of the prosecution, or a discharge of the jury, and subject the accused to further prosecution for the same offense.
The question in this case is, whether or not the fundamental, law of the State, and the acts of the Legislature, can twice jeopardize the life or liberty of the citizen, or can fix the time at which jeopardy begins, and if either or both can be affected by the sovereign power of the State or by legislative action, has such change been made ?
We are not prepared to hold that even the entire sovereignty of the State has the power to subject her citizens to various trials for life or liberty, for one alleged offense, but may she not define when jeopardy begins, when a party has actually been put in peril of life or liberty, so as to free him from further answering to such charge ?
It will be seen by examining the many authorities referred’ to by the Chief Justice, that courts have not been uniform in their ruling as to when a defendant is in jeopardy.
We think the weight of the authority is as he stated it, but it is clear that there has heretofore been no definite and fixed rule prescribing the time when jeopardy attaches, and we are not prepared to say that there is any principle of higher law or natural right that prevents the sovereign people of a State, when in convention, from defining, within the bounds of reason and justice, when, and not till when, a citizen shall be considered in jeopardy. If so, have the people changed or modified the rule in this respect ?
The Constitution of 1836, section 11, article II., declared : “That in all criminal prosecutions the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favor; and in prosecutions by indictment or presentment, a speedy public trial by an impartial jury of the county or district in which the crime shall have been committed; and shall not be compelled to give evidence against himself.” Section 12: “That no person shall for the same offense, be twice put in jeopardy of life or limb.”
But in the Constitution of 1868, the clauses in reference to the trial of persons for high crimes are, to some extent, changed. Section 9, Article I., is as follows: “No person shall be held to answer a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases of petit larceny, assault, assault and battery, affray, vagrancy, and such other minor cases as the General Assembly shall make cognizable by justices of the peace, or arising in the army or navy of the United States, or in the militia, when in actual service, in time of war or public danger; and no person, after having leen once acquitted by a jury, for the same affense shall again be put in jeopardy of life or liberty ; but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had may, in its discretion, discharge the jury, and commit or bail the accused for trial at the same or at the next term of said court; nor shall any person be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons, before conviction, shall- be bailable by sufficient sureties, except for capital offenses — murder and treason — when the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not he suspended unless when in cases of rebellion or invasion the public safety may require.”
In the Constitution of 1836, we find the declaration that an accused shall not be twice put in jeopardy of life, etc., leaving it solely to the courts to decide what is being in jeopardy, a term, as we have above stated, not well defined; some courts holding that at a certain stage of the proceedings jeopardy attaches, while others hold that it does not attach until further steps have been taken. The proposition as to whether or not a jury, duly empaneled, can be discharged, if so, when and under what circumstances they may be discharged, without the accused having a right to acquittal, are among the vexed questions that for so many years have perplexed the courts, and we think the language of this ninth section, of article one, of our new Constitution, compared with that of sections 11 and 12, article 2, of the old Constitution, shows that the minds of the people’s delegates, in convention, were directed to these difficulties, and that, while they attempted still to secure to an accused all the substantial rights afforded by a free and liberal government, they attempted to so define those important rights that guilty parties might not escape for want of a technical compliance with salutary and substantial provisions.
The old Constitution not only declared that in eases of criminal prosecution, the accused should be informed of the nature and cause of the accusation against him, but he should-have a copy thereof. It is a fact, well known to those of large experience, that many perplexing questions arose in practice as to the time and manner of furnishing such copy, as to whether that furnished was in all respects a perfect copy or was sufficient. The new Constitution attempts to avoid and does not require the copy, but leaves it to the courts to see-that the accused is properly advised as to the charges preferred against him, or for the Legislature to prescribe in what cases a copy shall be furnished. The new Constitution also omits that clause requiring all witnesses to meet the accused face to face.
Eut, upon the subject now before the court, the new Constitution does not declare, as did the old, that no one shall be twice put in jeopardy of life, etc., but declares that “no person, after haying been once acquitted by a jury, for the same offense, shall be again put in jeopardy of life or liberty.” And, as an evidence .that the convention was then attempting to define when that jeopardy, which would entitle a party to a verdict or a discharge, should attach, they, in the same section, say that the court in its discretion, may discharge the jury, if they differ in opinion, and the accused shall stand for further trial, etc.
It seems to us that the Constitutional Convention had power to define the time (consistent with right and the principles of republican government) when jeopardy does attach, and that a proper interpretation of the new Constitution is, that it does not attach until a verdict is had in the case.
The legislative department seems to have so interpreted this provision. In section 172, Criminal Code of Practice, it is enacted that: “There are but three kinds of pleas to an indictment: .First. A plea of guilty; Second. Hot guilty; Third. A former conviction or acquittal of the offense charged, which may be pleaded with or without the plea of not guilty.”
“Section 178 : The dismissal of the indictment by the court, on demurrer, except as provided in section 169, or for an objection to its form or substance, taken on the trial, or f<jr variance between the indictment and the proof, shall not bar another prosecution for the same offense.”
"We have seriously considered whether or not our strong inclination not to allow one, perhaps guilty of a henious crime, to go free, upon a mere error of the inferior court, without any finding or judgment upon the merits, may not have influenced our construction of these legislative acts, yet it does seem to us they were intended to define, and to some extent restrict the privileges of an accused; that they only prevent him from being discharged upon technical grounds, and that they are not inconsistent with common right and natural justice.
And, while we are conscious of the great importance of guarding individual rights and hedging in courts, wherever, from ignorance or prejudice, they are liable to overstep the bounds of justice, and the extreme delicacy in construing legislative acts in contravention of well established precedents, yet mature consideration impels us to say that, while we do not approve the action of the circuit court in discharging the jury, after the case had so far progressed, yet, under our late Constitution and statutes, there was no sufficient error to let this accused go hence with his crime unanswered, and that the sentence and judgment .of the court below ought to be affirmed.