
    *John Mount v. The State of Ohio.
    After the jury is impaneled and sworn, if a nolle prosequi be entered by the prosecuting attorney, with leave of the court, and without the consent of the prisoner, it is a good bar to another indictment for the same crime.
    If, after conviction, the indictment be stolen from the files, its place may be supplied by copy, like lost instruments or pleadings.
    The presence of the original indictment is not indispensable to the sentence of the prisoner.
    A judgment on the verdict of conviction or acquittal is not necessary in order that either may constitute a bar to another indictment for the same offense.
    ' This is a writ of error to the court of common pleas of the county of Hamilton, returnable in bank.
    On inspecting the record, returned in obedience to the command of the writ, it appears the plaintiff was, at the July term, a. d. .1844, indicted in the court of common pleas of Hamilton county for grand larceny.
    The indictment contains three counts. The two first aver that the plaintiff stole “ one mare, of the value of fifty dollars, of the personal goods and chattels,” etc., of “Jacob Rose, then and there being found, did steal, take,” etc. In the third count it is averred that “ one mare of the value of fifty dollars, of the goods and chattels of Jacob Rose, then lately before stolen,” the plaintiff in error did receive, buy, and conceal, with intent, then and there, to defraud the said Jacob Rose, then and there the owner of the same) “ he, the said ” plaintiff in error, “ then and there well knowing the said last-mentioned goods and chattels to have been stolen, contrary,” etc.
    To this indictment the plaintiff in error filed a special plea in bar thereof. The plea avers, in substance, that at the same July term of the court of common pleas of Hamilton county, the grand jury presented, in due form of law, their indictment against the plaintiff in error, consisting of three counts, for the same offenses as described and set forth in the present indictment. The plea then avers that, on such former indictment, the plaintiff in error was arraigned; that ho pleaded thereto not guilty; that a jury was thereupon duly impaneled and sworn, evidence heard, and the said jury, being charged by the *court, returned a verdiet of guilty on the first two and not guilty on the third count of said indictment, which said judgment remains in full force and effect — not reversed nor made void.
    The plea also avers the plaintiff in error to be the same person, the offense the same and identical with those stated in the present indictment, and concludes with a prayer for judgment, and that he may be hence dismissed and discharged.
    To this special plea the counsel for the prosecution demurred. The court, however, overruled the' demurrer, and gave leave to file a replication, which was accordingly done.
    The replication substantially admits the facts set up in the plea, but denies there is any such record, inasmuch as the former indictment in said plea mentioned was at the then present criminal term of said court, and after said verdict was given, stolen from the files; and thereupon, on motion' by the counsel for the state, the verdict was set aside and a nolle prosequi entered by leave of the court, as to the said former indictment, by the prosecuting attorney, which replication concludes to the court.
    The plaintiff in error then interposed a demurrer to said replication to the special plea, and the counsel for the state joined. The demurrer was overruled by the court, and the plaintiff ordered to answer over the last indictment. He thereupon plead not guilty; A jury was impaneled and sworn to try this issue; and, after they were so sworn, the prosecuting attorney abandoned the third count in the indictment. The jury found the plaintiff guilty on the two first, and not guilty on the third count, and the plaintiff received sentence of fifteen years' imprisonment in the penitentiary, and to reverse these proceedings this writ is prosecuted.
    The plaintiff assigns for error: 1. That the indictment is insufficient. 2. That the judgment should have been in the plaintiff’s favor. 3. That the court erred in permitting the state to reply to the plaintiff’s special plea in bar, after overruling the demurrer thereto. 4. In not discharging the plaintiff after the replication to his plea was filed, thb replication itself admitting the plaintiff *to have been tried and convicted for the same offense. 5. In overruling the demurrer to the replication. 6. In permitting the state to abandon the third count after the jury was sworn. 7. In proceeding to try the plaintiff a second time, having been once tried and convicted of the same offense. 8. In permitting the state to enter a nolle prosequi on the verdict and finding of the jury, on the first trial, in order to try him again for the same offense. 9. In making no disposition of the plaintiff’s special plea in bar, and the replication thereto, but merely overruling his demurrer to it, and compelling him to answer over.
    Donn Piatt and A. J. Pruden, for the plaintiff in error:
    Waiving further argument upon other assignments, the plaintiff in error would call the attention of the court to the one relied on, and that is, that the court erred in permitting the prosecutor to enter a nolle prosequi upon the first indictment after verdict, and forcing the plaintiff in error to a second trial upon the same charge.
    The constitution declares that no person shall be put in jeopardy twice for the same offense. The whole question then is: What is putting in jeopardy, within the meaning of the constitution? I hold that swearing the jury to determine the guilt or innocence of the accused,’upon a sufficient indictment, puts, the person so charged in jeopardy. It is the jury trial. After the jury are sworn, the accused is entitled to a verdict. No second jury can be called, except when the first are unable to agree, or where, by death or bodily infirmity, they cease to be a jury. No second indictment and trial can be had where there has been a verdict upon a sufficient indictment for the same offense. Where no judgment can be rendered in consequence of defect in .the indictment, and when it is impossible for the jury to return a verdict, it has been decided, and upon sufficient reason, that a second jury may be called — the doctrine *being founded upon necessity. Where judgment is arrested from a defect in the indictment, there may be a second indictment and trial, because the first was not an indictment for that offense, being in fact a nullity.
    The prosecutor does not pretend that the present case falls within any of these exceptions, but says the prisoner has never been put in jeopardy, because no judgment was rendered, for the reason that the indictment was lost after verdict — that no person is put in jeopardy until after judgment.
    It matters not what becomes of the indictment, if trial and verdict, as I have argued, puts the accused in jeopardy, he can not a second time be indicted and tried for the same offense. If it should be held that a person could be indicted and tried for the same offense,' after trial and verdict, because t.he court had not rendered judgment upon the first verdict, a neglect upon the part of the court to do its duty would authorize a second trial. In this view of the matter, the right of the accused would rest upon the conduct of the court, and not upon the constitution. The misconduct of the court would deprive the accused of a constitutional right. This is a strange doctrine, truly.
    But the question not only x-esis upon reason, but on authority. Chief Justice Tilghman says (6 Sei’g. & Rawle, 577): “Where a party is tried and acquitted on a bad indictment, he may bo tried again, because his life has not been in jeopardy. The court could not have given judgment against him if he had been convicted. But where the indictment is good, and the jury is charged with the prisoner, his life is undoubtedly in jeopardy during their deliberations.”
    
    Justice Duncan, in the same case: “ There is a wide diffei’enee between a verdict given and jeopardy of a verdict. Hazard, pex-il, danger of a verdict, can not mean a verdict given. Whenever the juxy are charged with a prisoner*, when the offense is punishable with death, and the indictment is not defective, he is in jeopardy of life.”
    
    Judge Stox*y says (2 Sumn. 40) : “And here, in order to avoid any ambiguity, it may be proper to state that conviction does-*not mean the judgment passed upon a vei’diet; but” (and here the judge quotes Irom 4 Black. 362; also refers to 3 Just. 131), “ if the jury find him (the pax’ty) guilty, he is then said to be convicted of the crime; for there is, in point of law, a difference between the pleas of autrefois convict and autrefois attaints of the same offense. The former may be where there has been no judgment, the latter is founded upon a judgment.” •
    In 4 Black. 336, it is laid down that, “ that the plea of autrefois convict, or a former conviction of the same identical ci’ime, though 
      
      no judgment was ever given, or perhaps will (being suspended by benefit of clergy, or other causes'), is a good plea in bar.” 3 Hawk. P. C. 36, 3, 1; 10 Stanf. P. C., lib. 11, chap. 37, p. 10; 2 Caine, 304; 1 Bail. 651; 1 Hay. 241.
    Then, the trial by jury and verdict, puts the accused in jeopardy. The accused can be put in jeopardy but once. Having been once put in jeopardy, how does the loss of the indictment affect his right ? The prosecutor seems to think, and so decided the court below, that the loss of the indictment authorizes the accused to be put in jeopardy twice. The constitution makes no such exception ; but says no person shall be twice put in jeopardy for the same offense. And this, I humbly trust, will prevail.
    C. H. Brough, for the state :
    I insist, in the first place, that the special plea in bar is insufficient in law, and that the demurrer to it was therefore well taken. The plea of autrefois acquit, or autrefois convict, must be set forth; not merely a verdict, but a judgment thereon, or it is bad. Hurley v. The State, 6 Ohio, 404; 2 Hale’s P. C. 243, 248, 251.
    The constitutional provision that no one shall twice be put in jeopardy for the same offense (Constitution of Ohio, art. 8, see. 1), is merely an affirmance of the previously well-established ^principle of the common law. In Hurley v. The State, above cited, this court say: “ Our constitution is nothing more than the recognition of the common-law principle on this subject.” Vide also People v. Goodwin, 18 Johns. 202; and United States v. Gibert et al., 2 Sumn. 19.
    It is well established, at the common law, that a previous insufficient indictment, and trial thereon, is no bar to a subsequent trial, upon a good indictment. And the reason is, that the court can not render judgment upon such an indictment; for it charges no felony, and so no putting in jeopardy. But, if judgment had passed, even though the indictment were manifestly bad, and the plea set forth the judgment, as well as previous proceedings, this would be good, being properly pleaded, until the judgment should be reversed. Vaux’s case, 4 Coke, 44, cited in 2 Hale’s P. C. 248; and see the People v. Barrett and Ward, 1 Johns. 65, and cases there cited. Upon this rule, how shall it be known whether the indictment be good or bad, in this case, since it is not set forth in the plea, and the court have not impliedly said it is good, by rendering judgment upon it? It is even said that a judgment of ac« quittal, quoad est sine die, upon such defective indictment, shall be supposed to have been given, because of the defect of the indictment; and the judges are to look into the indictment and determine as to its validity. 2 Hale, 248 citing Co. P. C. 214. But, in this case, I apprehend there would have been no controversy about the matter, had any previous indictment remained to bo looked into. And, if it be no bar to plead an insufficient indictment, how shall it be maintained as such, to plead an indictment upon which judgment has not passed, and which is in no way, nor can be, placed within the cognizance or'inspection of the court?
    The demurrer, admitting the truth of the matters stated in the special plea, raised the question, whether a mere trial and verdict, without judgment, was such a putting in jeopardy as is contemplated by the constitution. I am aware that there are conflicting decisions in the circuit courts of the United ^States, and the courts of other states, upon this question, in some of which, as will hereafter be seen, the same court, by the same judge, at one time, stands opposed to itself at another. But, in this state, it is no longer an open question ; and, as our courts are to construe for themselves the constitution and laws of Ohio, looking abroad for analogy, to be sure, but not for binding authority, I submit that the rule of their decisions heretofore, must govern now, unless there be conclusive reason for setting it aside.
    The case of the State v. James Turner, 5 Ohio, 542 (see the same case in Wright, 21), and Hazer’s case, 5 Ohio, 544, show the correctness of the proceedings of the court of common pleas in this case; and to these may be added that of the State v. Harley, 6 Ohio, 404, a capital case; and the constant practice of this court, where, upon writs of error, new trials are awarded. It may be urged that, in this latter class of cases, the court act by authority of statute, p. 731, sec. 2; but, of what authority is that statute, in so far as it comes in conflict with the constitutional provision in question ? The proposition of prisoner’s counsel is, that the mere fact of charging the jury with the trial and deliverance of a prisoner, is putting him in jeopardy. That this is not the correct understanding of the provision, I vouch the statute itself, being the authentic exposition of the legislature, as also the precedents and practice of this court.
    It would seem unnecessary to examine the cases relied upon by prisoner’s counsel, in the reports of other states. The Commonwealth v. Cook et al., 6 Serg. & Rawle, 577, is much more th'-m neutralized by the People v. Goodwin, 18 Johns. 187, and tb*i People v. Denton, and People v. Olcott, 2 Johns. Cas. 275, 301 — tf which is to be added the Commonwealth v. Bowden, 9 Mass. 494 The case of the United States v. Gibert et al., 2 Sumn. 19, stand? opposed to the decision of the same court, by the same judge, ir United States v. Coolidge, 2 Gall. 364. It is, moreover, inconsist ent with itself, and with the merciful spirit of the criminal law; for it decides that ^prisoners under conviction of piracy, a capital offense, having moved for a new trial, can not have such new trial awarded, because of the constitutional provision, that no one shall twice be put in jeopardy for the same offenso! And, having gravely reasoned out this conclusion, against the authorities of his own commentaries, the judge as gravely proceeds to reason down the .affidavits of newly-discovered testimony, implying that, mauger the construction he bad given to the constitution, he found it necessary, upon this ground, to look beyond it, and controvert the reasons urged for the motion. It would sound strangely, indeed, were the prosecuting attorney, in a capital case, where the prisoner, after conviction, had moved for a new trial, to bring in this case, and contend that a new trial could not be granted, because the constitutional rule forbade it; and yet, if the decision be authority for any purpose, it would be for that very purpose. A much better reasoning, in my judgment, is to be found in the opinion of Mr. Justice Davis, in the same case, completely demolishing the refinements of Mr. Justice Story; and the whole decision is stripped of the least vestige of authority, in this cause, by the distinction which it draws between felonies and misdemeanors — applying this rule to the former and leaving the latter untouched.
   Wood, J.

It can scarcely be necessary to consider the numerous assignments of error made upon the record, separately, since they may all be included under the two following propositions;

1. Whether the state, in a criminal prosecution, can, without the prisoner’s consent, enter a nolle proseguí on an indictment, after the jury are charged with his ease; that is, after the jury are impaneled and sworn? 2. Whether the special plea of autrefois convict is a bar to the second indictment, the first not being deIective, although the conviction is not followed by sentence or judgment thereon?

As to the first, we entertain the opinion that a nolle prosequi can not, in such a case, and under such circumstances, be entered *by the state, without operating as an acquittal to the accused. If the rule be otherwise, every criminal trial becomes at once subject to numerous exigencies, which may arise during its progress, either from defect of preparation, insufficiency of testimony, the-unexpected absence, or the impeachment of a witness, on the part of the state, and which a second, third, or more trials might possibly remedy. Can it be doubted that, to allow such a course to be taken with a prisoner, would place him twice in jeopardy for the same offense? It may be done under leave of the court; his destiny is controlled by no fixed rule, but his fate is committed to an uncertain judicial discretion, too unlimited and too various to furnish a just and safe guide, and 'which every cautious and prudent judge desires to avoid.

I take the true rule to be, that a nolle prosequi can not be legally entered after the jury are sworn ; and if a prisoner be discharged, under pi’etense of such entry, from the prosecution, and without his consent, it is equivalent to an acquittal, and a bar to a second indictment (or the same crime. The rule should be so in principle, and we think is so upon authority. In South Carolina, it has been holden that such entry can not be made after the jury is impaneled; and, on a trial for murder, a question being put to a juror, and his answer given, the solicitor-general, with permission of the court, entered a nolle proseequi, and the jury were discharged; and this was held a bar to a subsequent imdictment. State v. McKee, 1 Bailey, 651, 653. In New York, after the jury is sworn and evidence offered, if the prosecutor, without the prisoner’s consent, withdraw a juror merely because he is not prepared, the prisoner can not be again tried for the same offense. 2 Caine, 304. In Tennessee, if the jury be allowed to separate without the rendition of a verdict alter the prisoner be once put on his trial, it is held a bar to a second trial on the same indictment. 1 Head, 241.

There is a class of cases, however, in which it has been holden that after the trial has closed, and the jury have retired to deliberate, in the exercise of a sound discretion, the court *may discharge the jury, continue the prosecution, and remand the prisoner for another trial on the same indictment. This was done in the People v. Goodwin, because the jury were unablo to agree. 18 Johns. 187. In the case in South Carolina, before cited, it was said that authority was confined to those cases only in which there was the consent of the prisoner, the illness of one of the jury, the prisoner or the court, the absence of jurymen, or the imjjossibility of their agreement. It was also said, the discretion to discharge a jury and remand a prisoner for another trial, is a legal discretion, and to be exercised according to known rules. State v. McKee, 651, 653. In Pennsylvania, this power can only bo exercised in cases of absolute necessity. The illness of the jury, if arising from privation, and removable by food, and the prisoner consent that it may be supplied, is not an adequate cause of their discharge; and if discharged, under such circumstances, another trial will be barred. 3 Rawle, 498, 500; 6 Serg. & Rawle, 577. The Sul preme Court of Pennsylvania admit its decisions and those of some of the other states are in conflict; but declare the constitutional right of the subject, not to be put in jeopardy a second time, ought not to depend on the arbitrary opinion of judges. In Henley v. The State, 6 Ohio, the rule, held in the People v. Goodwin was recognized as the law in this state. But we are unable to discover in any of these cases any established rule, direct or analogous, which will authorize the court, after full trial, and conviction or acquittal, under the mere pretext of a fact happening after conviction, with which the plaintiff had no connection, and did not, per fraudem, produce, to put a prisoner on another trial. To us, the felonious abstraction of the indictment, after conviction and before sentence, is no excuse nor justification for the leave given to enter the nolle prosequi; and the discharge of the plaintiff, under such entry,-from that indictment, wo think should be held to bar the subsequent prosecution for the same offense.

By the adoption of this rule, we do not intend to make any ^infringement, nor is any perceived, on that class of cases in which a new indictment or a recital of a former one is allowable. This may be done when the indictment is insufficient, the judgment arrested, and in like cases.

I am aware that, in some of the states, a practice has grown up, of entering, by leave of the court, a nolle prosequi, after the jury are sworn in cases of misdemeanors; but it has not been followed in others; and we do not feel disposed to extend it to cases where the punishment on conviction is imprisonment in the penitentiary.

There can, we think, be no question of the right of the state, after the jury are sworn, to abandon any count, or all the counts of an indictment, even against the defendant’s consent; but abandonment can not be held to bo anything more than the expression of the opinion from the legal authority of the state, on the insufficiency of the evidence to produce conviction, in the case made; and it is equivalent to an acquittal. It justifies and requires from the jury, with the sanction of the court, a verdict of not guilty, and the prisoner may of right demand it. An abandonment, therefore, of a criminal prosecution, after the jury is sworn, is tantamount to an acquittal, and the effect is the same; and no error is perceived by us, in the exercise of this right by the state, in reference to the third, count.

The opinion expressed on this point, disposes of the whole case, and renders it unnecessary in fact to consider the second proposition stated, to wit, whether the special plea of autrefois convict is, of itself, a bar to the second indictment. It seems, however, to be a good bar; and to hold otherwise, would be, in the language of the bill of rights, to put a prisoner twice in jeopardy for the same offense. Here are an indictment, trial by jury, and conviction for a crime, and a second indictment, trial, conviction, and judgment, for the same crime. • It is indeed said, the former conviction, not being pursued to judgment, is inoperative, and constitutes no bar to the present indictment. Is this true? Must there be a judgment on the conviction, in order to render the prisoner’s plea in bar an answer *in bar to the second indictment? We hold not. The verdict itself, whether of conviction or acquittal, formal or virtual, constitutes a bar. 7 Cow. 414, 418, etc.; 2 Yerger, 24. In this last case, the verdict was held a bar, where the judgment was improperly arrested, on a good indictment. The only reason assigned, in this cáse, for not passing sentence on the prisoner, on his first conviction, is the felonious abstraction of the indictment, and that fact is singularly incorporated into the replication of nul tiel record, as if a fact dehors the record was triable by the record itself. It may, perhaps, bo treated as surplusage; and, therefore, the demurrer to the replication of nul tiel record was properly overruled, so far as regarded the replication. It would then reach the plea; and, were it necessary, we should hold with the court, of common pleas, in overruling the demurrer to it, that this special'plea is, as pleaded, a bar to the present indictment. 7 Cow. 414; 2 Sumn. 40. The difficulties to be overcome in reaching the plaintiff in error, so as to pass sentence upon him, would by no means be insurmountable, were it not for the nolle prosequi, on the former indictment. It was not indispensable to the sentence, that the original indictment should bo before the court. If lost or destroyed by accident, or by the fraud or design of the plaintiff in error, or stolen by him or another, and the prosecution were not in fault, its place might have been supplied by a copy, like any other record or pleading. A copy of the indictment is not transmitted with the convict, but a copy of the sentence only.

But if the plaintiff in error had been beyond the reach of punishment, by the loss of the files, it were far better to let him remain so, than to introduce now rules which might be easily converted into wrong, through the means of judicial discretion, and thus to hazard the rights, or take away the protection belonging to persons accused of crime. Now agencies demand new rules or may change old ones; but nothing can justify us in giving to the nolle prosequi the effect demanded by the state, until, at least, other expedients, less objectionable, are resorted to.

The judgment is reversed.  