
    Kohlheimer v. State,
    39 Miss. R., 548.
    Homicide.
    The constitutional rule which declares that “ no person shall, for the same offense, be put twice in jeopardy of life or limb for the same offense, applies only to those eases where there has been had either a lawful acquittal or a lawful conviction, under a valid indictment, which is sufficient in law to authorize the court to pronounce its judgment.
    If the indictment be so defective in form that a valid judgment could not be pronouneed upon it against the defendant, he has not been in jeopardy; and if acquitted, the acquittal would be no bar to another prosecution for the same offense.
    An acquittal or conviction (where the penalty has not been inflicted) upon a void proceeding or indictment, will not operate as a bar to the subsequent indictment. Semite — That where the penalty has been inflicted it is different.
    The verdict of a jury on an indictment for murder, convicting a party of manslaughter, operates as an acquittal of every offense of a higher grade of which he might have been convicted under the indictment.
    Error to Chickasaw circuit court. Acker, J.
    Frederick Kohlheimer was indicted in the eomt below for murder. The caption of the indictment showed that twenty persons, to serve as grand jurors, were summoned by the sheriff, without any writ for that purpose; that they were selected by him in equal numbers from each of the police districts of the county. They were organized, empaneled, and sworn as a grand jury. This body returned the bill of indictment into court. The indictment was found in October, 1857, for a honn icide committed in July of the same year. The defendant pleaded not guilty, and was convicted of manslaughter. He moved in arrest of judgment, and his motion being overruled, he made a motion for a new trial, which was overruled, and he excepted and sued out this writ of error.
    id Anderson, for plaintiff in error.
    That the plaintiff in error could not be again indicted for murder is clear, for of that charge he has been acquitted. Neither could he be indicted for manslaughter, for the statute of limitations bars the prosecution for that offense. 13 S. & M., 262; Hurt v. State, 25 Miss., 378 ; Slaughter v. State, 6 Humph., 410; Haynie v. State, 34 Miss., 620.
    
      T. J. Wha/rton, attorney general,
    On the point whether the prisoner should be discharged or remanded for a new indictment, cited Eeynolds v. State, 1 Kelly (Ga.) B., 222, and also argued that a second prosecution could be had for manslaughter, and cited Eev. Code, 613, art. 249.
   Harris, J.:

The plaintiff in error was indicted for murder, and convicted of manslaughter in the court below, and sentenced to imprisonment in the penitentiary. A motion in arrest of judgment was made, on several grounds; among others, on the ground that the indictment was not found by a legal grand jury, and also that there was no indictment, or issue, on which the plaintiff in error could have been lawfully put upon his trial. This motion was overruled.

Afterwards a motion for a new trial was made, which was also overruled. Exceptions were taken and allowed, and the cause is now brought to this court by writ of error.

Many grounds of error are assigned in the record before us; but it being conceded that the indictment was void, because the record shows that it was found by an illegal body, acting as a grand jury, the question now made before us is, what disposition shall be made of the accused.

It is urged that the finding of the jury is an acquittal of the crime of murder, and he cannot, therefore, be re-tried for that crime; that the record shows that the offense of manslaughter is barred by the act of limitations, and he cannot, therefore, be convicted of that offense. It is insisted, then, that he should be discharged by this court, on the ground that there^was no valid indictment against him appearing in this record upon which a judgment could be pronounced; that the judgment should have been arrested on the motion of plaintiff in error in the court below; and, in correcting that error, this court must necessarily discharge the accused, as no further prosecution can be maintained against him for this offense.

It will be observed that the sole ground upon which the pres'ent application is predicated seems to be the total nullity or invalidity of the indictment upon which this prosecution is based. The question, therefore, tobe decided now is, whether any, or what, effect in law is to be given to a criminal prosecution void on its face.

Independent of statutory or constitutional provisions in this ■ state, to which we shall hereafter have occasion to refer, it is an established maxim of the common law, in the administration of criminal justice, constantly recognized by elementary writers and courts of judicature from a very early period down to the present time, “ that a man .shall not be brought into danger of his life for one and the same offense more than once.” In the case. of the United States v. Gilbert, 2 Sumner, 38, Judge Story states the rule, and collects and reviews the authorities, showing that a former conviction .or acquittal may be plead in bar of a second indictment for the same offense, even at common law. But the rule thus recognized is always stated with the qualification that “ it is intended of a lawful acquittal or conviction; for if the acquittal or conviction is not lawful, his life was never in jeopardy.” 4 Coke, 40-47, case of William Vaux; 2 Hawkins’ P. C., book 2, ch. 36, § 15 ; 2 Hale, ch. 31, 32, p. 243; Regina v. Goddard, 2 Ld. Raym., 922; Armstrong v. Lisle, 1 Salk., 63; People v. Barrett, 1 John., 66; The People v. Carbury, 13 John., 351.

Thus we see that the maxim is imbedded in the very elements of the common law, and has been uniformly construed to present an insurmountable barrier to a- second prosecution, where there has been a verdict of acquittal or conviction regularly had, upon a sufficient indictment. Such was the rule of the common law, and its interpretation, at the time it was adopted into the Constitution of the United States as an article of the Bill of Rights, and subsequently into our constitution, as the thirteenth section of our Declaration of Rights. See 3 Greenleaf’s Ev., p. .41, §-35, and numerous authorities cited in notes; Wharton’s Am. Crim. Law, §§ 541, 551, 573,587; Bishop’s Crim. Law, §§ 663, 666, 673, 677, and authorities cited.

By the constitution of Mississippi (Declaration of Rights, .§ 13), it is provided that “ No person shall, for the same offense, be twice put in jeopardy of life or limb.”

The same provision, is contained in the Constitution of the United States, and the constitutions of most, if not all the states; and the decisions of the courts have constantly recognized the principle, under their written constitutions, so fully established by the common law, that if the indictment be so defective in form that a valid judgment, could not be pronounced upon it against the defendant, he has not been in jeopardy ¡ and if acquitted, the acquittal would be no bar to another prosecution for the same offense. See Bishop’s Grim. Law, §§ 663, 666; 2 Hale P. C., 248; 1 John., 66; 4 Coke, 44; 1 Bice, p. 1; 1 M. & S., 183; 3 Metcalf, 328; 2 St. & Port., 341; 1 Ya. Cases, 312.

It is further said by Mr. Bishop, upon the authority of many adjudged cases, that if sentence be pronounced upon conviction, the defendant will be protected, while the judgment remains unreversed, not because he has ever been in jeopardy, but because of a general and very important principle of the law, that an erroneous final judgment, rendered by a competent tribunal having jurisdiction over the subject-matter, is voidable only,” &e. 1 Bishop, § 663. But in § 666 he says: “ Where a man is brought before a tribunal that has no jurisdiction over the offense with which he is charged, or that has its existence by virtue of an unconstitutional act of the legislature, or that is holding a term of court unauthorized by law, or that for any other reason has no authority to try him, he is not in jeopa/rdy, however far such tribunal may proceed with his case. And in most, and probably all, of these circumstances, the final judgment, when pronounced, is noti voidablej as mentioned in a previous section (§ 663, just quoted), but void; so that his conviction, unreversed, is no more a bar to another prosecution than his acquittal.” The State v. Odell, 4 Black. 156; Com. v. Hyde, Thacher Cr. Cases, 112; Com. v. Peters, 12 Metcalf, 387; Com. v. Goddard, 13 Mass. R., 455, 457; The State v. Payne, 4 Miss. R., 376; The State v. McCory, 2 Blackf., 5; Marston v. Jenness, 11 N. H. R., 156; Com. v. Myers, 1 Va. Ca., 188-248; Rector v. The State, 1 Engl., 187; see McGinnis v. The State, 9 Humph., 43; Dunn v. The State, 2 Pike, 229; Rex v. Bowman, 6 Car. & P., 337; The State v. Atkinson, 9 Humph., 677; Com. v. Alderman, 4 Mass. R., 477.

Mr. "Wharton, in the fourth and revised edition of his work on American criminal law, ,§ 541, says: “ A legal acquittal in any court of competent jurisdiction, if the vndictmient be good, will be sufficient to preclude any subsequent proceedings before every other court.” See Arch. C. P., 82; 1 Green., 361; 12 Gonn. E., 54; 27 Maine E., 266; 5 Eand, 699. At § 573, the constitutional provisions of the federal and state governments are noticed, and the same principle stated. So in 3 Greenleaffs Ev., p. 41, §§ 35, 36.

It seems to be clear, therefore, upon principle, as well as authority, that neither at common law, nor by our constitution, will an acquittal or conviction (where the penalty has not been inflicted) upon a void proceeding or indictment operate as a bar to a subsequent indictment for the same offense.

It cannot, therefore, be said that the defendant has been acquitted of the crime of mtorder, by his conviction of manslaughter, upon an indictment which is pronounced in this proceeding to be void, because not found by a competent grand-jury, as appears by this record, unless there be some special provision in our .statute changing the common law rule on this subject.

"We .are referred to the case of Heward v. The State, 13 S. & M., 262, and Hurt v. The State, 25 Miss. R., 378, as establishing a different rule.

The first case cited only has reference to the statute of limitations in relation to manslaughter, holding that where it appears from the record that the statute has interposed its bar, that the defendant would be entitled to his discharge, under the provisions of Hutch. Code, 1004.

The case of Hurt v. The State, on the point we are now called to consider, cannot be deemed an authority for the position that an acquittal under a void indictment, void on the face of the record, is in law a bar to another indictment for the same offense. There is nothing in the report of the case which shows that the point here presented was either discussed by counsel or decided by the court. The acquittal of murder seems to have been taken as indisputable in that case, for the reason that the indictment was considered not absolutely void, but merely voidable.”

The language employed in delivering the opinion of the court shows that the point now under consideration was not made.

It was insisted for the defendant (p. 380) that the verdict of manslaughter is an acquittal “of the charge of murder, and as the statute of limitations will bar another indictment for manslaughter merely, the prisoner should be discharged.”

The attorney general replied, “ that the reversal of the judgment, on the verdict of manslaughter, annuls the whole proceedings upon the trial below, as well for as against the prisoner; and that the indictment having been avoided by the fleas in abatement, he can be again indicted for the crime of murder.”

The attorney general does not present the point now under consideration — that the indictment and whole proceedings are void; but urges that the reversal of the j%idgment of the court below, overruling the defendant’s plea in abatement, showing the illegal organization of the grand jury, annulled the whole proceeding below, both as to the acquittal of murder and the conviction for manslaughter. Tie did not assume that the whole proceeding was void, but reversed.

Wliat does the court say immediately following this statement made by itself of the respective positions of the counsel for the state and for the accused? “A vetfdict of a jury, finding a party put upon his trial for murder guilty of manslaughter in the third degree, must of necessity operate as an acquittal of every crime of a higher grade, of which he might have been convicted under the indictment upon which the issue was made. If, then, on Vaeface of the record it appears that the indictment is void, consequently that no legal conviction could be had upon it by the rule established by the court in Hurt’s case, there could be no legal acquittal or conviction.

The court then proceeds to discuss the effect of the reversal of the conviction for manslaughter, and to show that it only annulled that judgment; that, in effect, there were two verdicts and two judgments in the court below — one a verdict and judgment of acquittal of the crime of murder, from which no writ of error was, or could be, prosecuted under our system; the other a verdict of guilty of manslaughter, and judgment thereon, from which the defendant alone qguld prosecute a writ of error. “ The judgment of reversal could extend only to such judgments and matters as the writ of error brought to our consideration.”

“ A judgment acquitting the party of murder not being one which could be embraced in his writ of error, for the same reason could not be embraced in our judgment.” Hence it stands unaffected by our action, as the judgment of the court below on the charge of murder. It may be true that no formal judgment of acquittal was entered; but we hold that the sentence of the court upon the verdict of manslaughter was of itself a complete acquittal of all higher crimes of which the party might have been comjicted under the indictment.

And for this, the court cites the case of Slaughter v. The State, 6 Humph., 410, where that court, relying upon the previous case of The State v. Norrell, 2 Yerger, 33, state the rule to be “ that a verdict of acquittal wpon a good indictment is a bar, under our constitution, to - any subsequent trial for an offense affecting life or limb, although no judgment was ever entered.”

In further discussing the case. of Hurt v. The State, it is obvious that the court intended to confine itself to the indictments which, on the record, were at least prima facie legal, though voidable upon plea in abatement, as was the case before it. The case of a void indictment is expressly pretermitted by the language xised. On this subject the court says: “It is not necessary that we should go into an examination of the principles involved in the other question made by the attorney general. It may be admitted, for the sake of the argument, that the indictment was voidable; and still, under the record, the prisoner would be entitled to his discharge. The indictment purports to have been found by a grand jury organized by the court. The record shows that the prisoner was arraigned and regularly tried upon the charge therein contained, and that he was acquitted of the charge of murder upon the facts and testimony introduced before the jury. The statute is decisive of the question, and was no doubt enacted to relieve against such cases. It is in these words, to wit: “No person shall be held to answer on a second mdictment for any offense of which he has been acquitted by the jury upon the facts and merits on a former trial; but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same offense, notwithstanding any defects in the form or the substance of the indictment on which he has been acquitted.” See Rev. Code of 1857, p. 573, arts. 4, 5, 6, 7. How. & Hutch., p. 690, § 5; Id. 725, § 20.

“The statute,” says the court, “is decisive of the question.” What “ question ? ” Whether a prisoner larly tried,” and “ acquitted of the charge of murder, upon the facts and testimony introduced before “ voidable indictment, was entitled to be judgment for manslaughter had been arrssted, and that offense barred by the statute of limitations.” court says, “ the party has gone througl “ arraigned and reguthe jury,” under a discharged, when the “In such case,” the l the legal form of a trial, and has, by it, established his innocence; and hence the wisdom of the statute in providing for \such cases” — “cases” where there was an indictment, however irregular or “ voidable.” But certainly neither this decision, nor the act of the legislature just quoted, were ever designed to apply to a case vdiere, in law, there was no grand jury, no indictment, no accusation, no power or authority to arrest, arraign, try, convict or acquit, and hence no “jeopardy of life or limb.” Both the decision and the statute had reference to that class of cases where the defendant, waiving — perhaps scorning — the advantage of either technical or even substantial defects in the record or indictment, chooses to rely on the facts amd merits of his case for acquittal, rather than avail himself of the demerits of the officers of the law. In such case, however erroneous or voidable might be the proceedings against him, justice and good faith sanction the rule and the statute which seals his acquittal. It has relation to “ defects in the form or substance of the indictment,” not to a void proceeding. The defendant may waive erroneous of voidable proceedings, but it is neither in the power of the defendant, nor of the court, nor even of the legislature itself, to give validity to a void prosecution, or a void judgment, upon a void indictment.

These principles, as well as this construction of the act in question, are directly sanctioned by the opinion of this court in Newcomb v. The State, 37 Miss. R., 383.

It is there held, that Art. 7, p. 573, of the Rev. Code, which provides that all objections, either to the form or substance of an indictment, shall be made before verdict, applies to those cases only where the defect is of such a character that the accused may waive it, either expressly or by his silence.

It is there further held, that a defendant cannot waive objections to a void indictment; that the right secured to him by our constitution, “to demand the nature and cause of the accusation against him,” cannot be waived or surrendered by hiim

The judgment below must be reversed, and defendant be ordered to appear at the next term of the circuit court of Pontotoc county, to answer to an indictment for the offense originally charged against him, according to his recognizance and bond. 
      
       Wharton’s Am. Cr. Law, 551, 587; Gerard v. People, 3 Scam., 363; Com. v. Cook, 6 Serg. & Rawle, 577; Com. v. Clue, 3 Rawle, 498; State v. Garrigues, 1 Hayw., 241; Com. v. Purchase, 2 Pick., 521; State v. Woodruff, 2 Day, 504; State v. Ray, 1 Rice, 1; Com. v. Loud, 3 Metc., 328; Com. v. Keith, 8 Metc., 531; People v. Marsh, 6 Cal., 543; Pritchett v. State, 2 Sneed (Tenn.), 285; People v. McNealy, 17 Cal., 333; Vaux’s case, 4 Coke, 44; State v. McGraw, 1 Walk., 208; Com. v. Somerville, 1 Va. Cas., 164; State v. Ray, 1 Rice, 1; Com. v. Clair, 7 Allen, 525; 1 Russell on Crimes, 836; Rex v. Turner, R. & M. C. C., 239; 1 Archbold’s Cr. Pr. and Pl., 112; Rex v. Vandercombe, 2 Leach, 708; Wigg’s case, 4 Coke, 46; Hite v. State, 9 Yerg., 357; State v. Woodruff, 5 Day, 504; Com. v. Goodenough, Thach. C. C., 132.
     
      
       See note (*) supra.
      
     
      
      
        Supra.
      
     