The opinion of the court'was delivered by
Fenner, J.The defendant complains of the overruling of his plea of former jeopardy based on the fact that, under a prior indictment for the same offence, the District Attorney had entered a nolle prosequi during the impanelling of the jury, and before the jury had been completed.
All authorities agree that the jeopardy of an accused does not begin until the jury is fully impanelled and sworn, and that prior thereto the State’s attorney may nolle prosequi the indictment without prejudice to new proceedings for the same offence. 1 Bishop Crim. Law, Secs. 1014, 1015; 1 Wharton Crim. Law, Sec. 590.
Complaint is also made of the judge’s refusal to refer the above plea to the jury. The plea, on its face, was not good in law, and was clearly demurrable. It involved no matter for a jury, and the judge acted correctly in overruling it.
Error is charged in the refusal of the judge to admit evidence of the dangerous character of the prosecutor, .on whom the offence was committed.
The judge’s statement shows that no foundation had been laid for the admission of such evidence. He says: “ Defendant was keeping an oyster saloon., and William Mainwaring went in to get oysters on credit. Defendant refused, and some hot words were exchanged, and William picked up a vinegar bottle on the.counter to strike defendant with. Defendant, with an oath, ordered William out, and, leaving the bottle on the counter, the latter went out on the sidewalk in front, but when he had reached the sidewalk he told defendant that he had cursed him while in his establishment but could not do so on the outside, upon which defendant drew a revolver, pointed it at William, walked up with revolver in hand and struck the latter, at *516the same time holding the revolver pointed at his head. After having received the blows from the defendant, William struck him with his fist and broke away in a run, and while he was running away, defendant shot at him when at a distance of twenty-five or thirty feet. act other than above stated.” There is no evidence that William was armed, or made any overt
The shooting is the offence for which defendant is prosecuted.
It is clear that, in the renewal of the fracas, after William had left the saloon, defendant was the attacking party, and that this attack and subsequent shooting were done at a time when defendant was not in danger and when in no way necessary for his self-defence. This absence of danger and of any necessity for self-defence, leaves no foundation for evidence of character. 1 Wharton Crim. Law, See. 641; 2 Bishop Crim. Prae., Secs. 610, 613.
Judgment affirmed.