Relator-appellant was arrested, charged with disorderly conduct. His trial was started before a police justice and a jury on Saturday and finished Sunday. He was found guilty by the jury and sentenced on Sunday for a term of thirty days in the county jail. He applied for a writ of habeas corpus and was released. He was again charged with the same offense upon the same information. Before trial he again applied for a second writ of habeas corpus and was released on the ground that a new trial would subject him to double jeopardy. The People appealed to the Appellate Division from the orders *Page 428 sustaining the writs. The orders were reversed by a divided court. The Appellate Division held that a second trial would not place appellant in double jeopardy as an appeal from the judgment of conviction as the result of the trial on Sunday would have resulted in granting a new trial.
The Constitution prevents a person from being placed twice in jeopardy for the same offense. "No person shall be subject to be twice put in jeopardy for the same offense." (N.Y. Const., art. I, § 6.)
That provision of the Constitution is fundamental and all courts of the State must be governed by it not only in form but in spirit even though the result is to release one legally indicted for the crime of murder. (People ex rel. Stabile v.Warden, 202 N.Y. 138.)
We are, therefore, required to determine whether under the clear wording of the Constitution and the undisputed facts, the appellant was placed in jeopardy at the trial, which was commenced on Saturday and continued into Sunday with the result that he was found guilty by the jury and sentenced to a term in jail by the police justice.
In this State, from the early days, it has been the law that a court cannot be lawfully held on Sunday and any judgment granted on Sunday is absolutely void. (Van Vechten v. Paddock, 12 Johns. 178; Story v. Elliot, 8 Cow. 27; Pulling v.People, 8 Barb. 384.)
The question of what constitutes placing one in jeopardy within the meaning of that word as used in the Constitution has repeatedly been passed upon by our courts.
The general rule in this State is that if the 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. (King v. People, 5 Hun, 297; People ex rel. Stabile v. Warden, supra; People v. Goldfarb, 152 App. Div. 870; affd., 213 N.Y. 644; cf. 1 Bishop on Criminal Law [9th ed.], p. 752, § 1014, subd. 5.) *Page 429
There is slight variation of that rule in other jurisdictions but generally it is substantially the same. (Cf. 16 Corpus Juris, p. 236 and cases cited.)
It is not necessary in order that a person may avail himself of the constitutional right not to be placed twice in jeopardy for the same offense that the prior trial shall have resulted in a valid judgment either of conviction or acquittal. It is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of having a valid judgment pronounced as the result of the trial.
It is not the verdict or judgment which places a prisoner in jeopardy. If a court proceeds illegally after a prisoner has been placed in jeopardy its illegal act cannot nullify the jeopardy. "If it did, then the process might be repeated forever, and the constitutional guaranty be rendered void." (1 Bishop on Criminal Law, p. 772, § 1045.)
In the case of People ex rel. Stabile v. Warden (supra) the defendant was placed on trial under an indictment which charged him with the crime of murder. The trial judge arbitrarily discharged the jury after the case had been submitted to it and while it was deliberating. The defendant was thereafter discharged in a habeas corpus proceeding upon the ground that he had been placed in jeopardy and could not be again tried for the same offense. In that case as in this the argument was made that the defendant had not been placed in jeopardy as there was no valid judgment of acquittal or conviction. This court rejected the argument and decided that as the defendant had been placed in jeopardy the unlawful termination of the trial did not prevent him from availing himself of his constitutional right. (Cf.People v. Goldfarb, supra; 1 Bishop on Criminal Law [9th ed.], p. 749, § 1013.)
If a court in which a prisoner is tried is entirely without jurisdiction and the trial is only one in form and can have no legal effect such trial does not place the prisoner *Page 430 in jeopardy and that defense is not available to him upon a retrial. (People v. Connor, 142 N.Y. 130.)
In the case at bar the trial started on Saturday, the court had jurisdiction, the proceeding was regular and the defendant was in jeopardy. The fact that thereafter the court lost jurisdiction by holding over into Sunday did not change the fact that the defendant had been placed in jeopardy.
When arrested the second time for the same offense, the appellant had a legal right to seek his release by habeas corpus. He was entitled to be released as a matter of law as no questions of fact were involved. There being no right to again place him on trial on the same charge, he was illegally deprived of his liberty and habeas corpus was a proper remedy. (People ex rel.Brinkman v. Barr, 248 N.Y. 126; People ex rel. Stabile v.Warden, supra.)
The order of the Appellate Division should be reversed and the orders of the Special Term affirmed.