
    Frederick Kohlheimer v. The State.
    1. Former jeopardy : necessary that the first indictment should be valid. — The rule of the common law, incorporated into.tlie constitution of ' the State, which declares that “no person shall, for the same offence, be twice put in jeopardy of life or limb,” is applicable only to cases where there has been an acquittal or conviction under an indictment whipli is suf- . fleient in law to authorize the court to pronounce judgment.
    2. Same : same. — Where the indictment under which a party has been tried and convicted or acquitted is void on the face of the record, because of the illegal organization of the grand jury who found and returned it, • such acquittal or conviction is not, either by the common law or the statute of this State, a bar to a subsequent prosecution for the same offence; it is other- , wise where the indictment is merely voidable for matter de hors the record..
    3. Same : effect of conviction, and punishment under void indictment.— It seems that a party who has been convicted and suffered the pun- - ishment prescribed by law, under a void indictment, cannot be prosecuted again for the same offence.
    Error to the Circuit Court of Chickasaw county, Hon. Joel' M. Acker, judge.
    This was a prosecution for murder in the court below. The caption to 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; that, they were organized, empannelled, and sworn' as a grand jury. This body returned the bill of indictment into court. The in-, dictment was found in October, 1857, for a homicide committed in July of the.same year. Plea not guilty. On the trial, the. prisoner 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. refused, and he .excepted, and sued out this writ of error.
    
      F. Anderson, for plaintiff in error.
    This case is submitted to the court on the question, whether tbe plaintiff in error shall be remanded for a new trial, or shall be discharged by the judgment of the court, it having held that there was error in the action of the court below in overruling the motion of plaintiff in error for a new trial.
    The offence as charged was committed in July, 1857, and the proof shows that that is the date of the homicide. The plaintiff in error was acquitted of the charge of murder, and found' guilty of manslaughter. The question now is, whether, on the reversal of the conviction for manslaughter, and an arrest of the judgment, because there was no valid indictment, owing to the fact that the grand jury was incompetent, another indictment can be found against him.
    That he could not be indicted again for murder is clear, for of that he has been acquitted; neither could he be indicted for manslaughter, for the Statute of Limitations bars the prosecution for that offence. 13 S. & M. 262, Seward v. The State; 25 Miss. R. 378, Surt v. The State; 6 Humph. 410, Slaughter v. The State. In the case in 25 Miss. R. — Surt v. The State — the very point was made and decided by this court.
    In the case of Sayne v. The State, 34 Miss. R. 620, the prisoner was, in a similar case, discharged, though it does not appear that the court placed its decision on the ground that the Statute of Limitations would bar the prosecution for manslaughter. Such a view must, however, have been in the mind of the court to authorize the judgment pronounced.
    It may be argued, however, Ihat the provision of the New Code, Art. 249, p. 613, is applicable to the case, and that one year’s further time is allowed on the arrest of judgment for finding another indictment. •
    But we submit that this provision of the Code is clearly not applicable to this case. The offence, if committed at all, is subject to the law as it existed before the passage of the Code. By Art. 363, p. 631, of Code, it is provided that all offences, penalties, and forfeitures, (committed or incurred before the passage of the Code,) shall remain subject to the laws heretofore in force, and all such laws are hereby continued in force as to such crimes, offences, penalties, and forfeitures, in the same manner and to the same effect as if this Code had not been passed.
    
      The law, therefore, that existed before the passage of the Code is to govern, and therefore the Statute of Limitations, which existed before its passage, bars the offence. That statute commenced running in July, 1857, twelve months from which time an indictment for manslaughter was barred. Without the provision last quoted, the Statute of Limitations of the Rev. Code would not apply. It speaks in the future, and does not embrace past offences where the statute had commenced running. It would not receive a retrospective operation, unless its terms admitted no other construction, which is clearly not the case.
    
      T. J. Wharton, attorney general, for the State.
    On the point whether the prisoner shall be discharged, or remanded for a new indictment, I refer the court to the case of Reynolds v. The State, 1 Kelly (Ga.) R. 222. There the prisoner was convicted of manslaughter, as here, under an indictment for murder. A motion was made in arrest of judgment, because the indictment was not found and filed in court within four years next after the commission of the offence charged in the indictment; 2, because the jury found the defendant guilty of manslaughter, on an indictment for murder, which was not found and filed in said court within four years next after the commission of the offence charged. The court said they were of opinion that the statute does not run against indictments found for that offence, although on the traverse the defendant should be found guilty of manslaughter only.
    It is true they said further it was unnecessary to rest the decision on that ground, as the period of limitation — four years— against prosecution for manslaughter had not elapsed from the date of the killing to the time when the case was decided.
    I also refer to Art. 249, Code, p. 613, which provides that the further time of one year shall be allowed for finding a new indictment in all cases in which an indictment has been quashed, or judgment arrested, &c. This provision was adopted subsequent to the commission of the offence in this case. ' I submit whether that fact constitutes it an expost-faclo law, in the sense in which those terms are used in the constitution. The penalty 
      of manslaughter is not increased. The conviction occurred subsequent to the passage of that statute.
    I submit, whether it was not competent for the Legislature to enlarge the limitation as to prosecutions for manslaughter, in all cases in which the bar had not taken effect at the date of the passage of the enlarging statute.
   Harris, J.,

delivered the opinion of the court:

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 offence of manslaughter is barred by the Act of Limitations, and he cannot therefore be convicted of that offence. 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 offence.

It will be observed that the sole ground upon which the present application is predicated seems to be, the total nullity or invalidity of the indictment upon which this prosecution is based. The question, therefore, to be 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 offence, 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 offence, 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, sec. 15; 2 Hale, ch. 31, 32, p. 243, 251; 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 embedded 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, sec. 35, and numerous authorities cited in notes; Wharton’s Am. Crim. Law, sec. 541, 551, 573, 587; 1 Bishop’s Crim. Law, sec. 663, 666, 673, 677, and authorities cited.

By the constitution of Mississippi (Declaration of Rights, sec. 13)it is provided that “No person shall, for the same offence, 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 offence.” See Bishop’s Crim. Law, sec. 663, 666; 2 Hale P. C. 248; 1 John. 66; 4 Coke, 44; Rice, p. 1; 1 M. & S. 183; 3 Metcalf, 328; 2 St. and Port. 341; 1 Va. 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,” &c. 1 Bishop, sec. 663. But in sec. 666, he says: “Where a man is brought before a tribunal, that has no jurisdiction over the offence 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 jeopardy, however far such tribunal may proceed with his case. And in most, and probably all, of these circumstances, the final judgment, when pronounced, is not “voidable," as mentioned in a previous section, (sec. 663, just quoted,) but void; so that his conviction unreversed is no more a bar to another prosecution than his acquittal. 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, sec. 541, says: “A legal acquittal in any court of competent jurisdiction — if the indictment be good— will be sufficient to preclude any subsequent proceedings before every other court.” See Arch. C. P. 82; 1 Green. 361; 12 Conn. R. 54; 27 Maine R. 266; 5 Rand. 699. At sec. 573, the constitutional provisions of the Federal and State governments are noticed, and the same principle stated. So in 3 Greenleaf’s Ev. p. 41, sec. 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 offence.

It cannot, therefore, be said that the defendant has been acquitted of the crime of murder, 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 offence. 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 tbe defendant (p. 380) that tbe 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 pleas 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-judgment 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. He did not assume that the whole proceeding was void, but reversed.

What 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 verdict 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 o‘f a higher grade of which he might have been convicted under the indictment upon which the issue was made.” If, then, on the face 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, frond which the defendant alone could 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 convicted 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 upon a good indictment is a bar, under our constitution, to any subsequent trial for an offence 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 used. 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 indictment for any offence 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 offence, notwithstanding any defects in the form or the substance of the indictment on which he was acquitted.” How. & Hutch, p. 690, sec. 5; Id. 725, sec. 20.

“The statute,” says the court, “is decisive of the question.” What “question?” Whether a prisoner, “arraigned and regrn, larly tried” and “acquitted of the charge of murder, upon the facts and testimony introduced before the jury,” under a “voidable” indictment, was entitled to be- discharged, when the judgment for manslaughter had been arrested, and that offence barred by tbe Statute of Limitations. “ In such case,’’ the court says, “ the party has gone through 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 where, 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 fads and merits, of his case for acquittal, rather than avai-l 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 or 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 Eev. 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 him.

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 offence originally charged against him, according to his recognizance and bond.  