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The Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India online

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Maden r. Emmons, 83 Ind. 331.

5 21 Am. Dec. 499.

6 HiUinds r. Commonwealth, 114 Pa. 372.

7 Hensley r. State, 107 Ind. 587.

8 Hilands r. Commonwealth, 1 1 1 Pa. 1 .

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Vol. Ill] The Cbiminal Law Journal. 147

and jury upon a valid indictment, the jeopardy attaches, to which he can-
not be again subjected, unless the jury be discliarged from rendering a
verdict by legal necessity, or by his consent ; or in case a verdict is
rendered, if it be set aside at his instance (9). Where accused has entered
a plea of guilty, and nothing remains but to pass judgment, he ha.s been
in jeopardy (10) ; and where a jury is impaneled and sworn, in a court of
competent jurisdiction, to try a prisoner under an indictment, sufficient in
form and substance to sustain a conviction, he is in jeopardy (11). Legal
jeopardy does not arise if the court has no jurisdiction of the oflEence (12).
Nor if it appears that the first indictment was clearly insufficient and
invalid (13). Nor is such a party put in legal jeopardy, if the term of court,
as fixed by law, comes to an end before the trial is finished (11). Where
the. trial has commenced, and the evidence was clearly in, when a juror
was taken sick and the panel discharged, it was held that the prisoner had
not been in jeopardy (15). Where on the trial of a criminal case, the state
introduced evidence and rested, and the defendant introduced his evidence,
and the district attorney then moved for leave to introduce a witness who
had not been before the grand jury, and of whose examination notice had
not been given, and the motion was sustained ; and the defendant then
elected to have the case continued, which was done accordingly, he couhl
not object to another trial, on the ground that, by the proceedings above
referred to, he had already been put in jeopardy (16). The discharge of a
jary from giving a verdict in a capital case, without the consent of the
prisoner, the jury being unable to agree, is not a bar to a subsequent trial
for the samo oflEence (17) ; nor if the jury is discharged after considering the
cau9e for such a length of time as to leave no reasonable expectation that
they will be able to agree upon a verdict (18) ; nor if, by any overruling
necessity, the jury are discharged without a verdict (19) ; nor if the ver-
dict is set aside on motion of the accused, or on writ of error, based on his
behalf (20) ; nor in case the judgment is arrested on his motion (21). If a
juror fraudulently procures himself to be put on the jury t4> acquit the
prisoner of murder, the judge may direct the withdrawal of a juror, even
9 People r. Horn, 70 Cal. 17 ; People r. Webb, 3S Cat 467.

10 Boswell r. State, 111 Ind. 47.

1 1 State r. Ward, 48 Ark. 36.

12 Commonwealth r. Ooddanl, 13 Misa. 455 ; People r. Tvler. 7 Mich. 161 : Montrons r.
State, 61 MigR. 429.

13 Commonwealth r. Bakeman, 105 Mass. 53 ; Gerard r. People, 4 III. 362 : People r.
Cook. 10 Mich. 164.

14 State r. Brooks, 3 Hump, 70 ; Mahala r. Stat?, 10 Yerg. 532 ; Wright r. State, 5 Ind. 290.

15 State r. Eraorj, 59 Vt. 84.

16 State V. Falconer, 70 Iowa, 416.

17 United States r. Perez, 22 \\ S. 9.

18 Dobbins r. State, 14 Ohio St. 493.

19 United States r. Perez, 22 U. S. 9 ; People r. (Joodwin, 18 Johns. 187.

20 State r. Redman, 17 Iowa, 329.

21 Pe«»ple r. CVborns. 13 John-*. 351 : Coleman r. Tenne3*»ee, 97 U. S. 509, 521,

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148 The Criminal Law Journal. [Vol. Ill

if the prisoner was innocent of the f rand ; and this constitutes no
jeopardy (22). And there was no jeopardy where, in a murder case, the
jury having been out ten days, the judge withdrew a juror, and ordered a
mistrial (23). Under the statute, conviction or acquittal by a judgment or
verdict will bar another prosecution for the same offence, notwithstanding
a defect in form or substance of the indictment ; but by any proceeding
short of conviction or acquittal, the defendant is not in jeopardy if the
indictment is so defective that a conviction under it would be reversed for
error (24). A trial of the defendant upon a transcript without a seal would
be no jeopardy, and no defence against a trial upon the same record after
it is perfected by the seal (25). The record disclosing that the jury on the
former trial were not discharged until they had been considering a verdict
for two days, and that they were discharged because they had been kept
together until it became altogether improbable that they could agree, the
defendant's plea of former jeopardy was properly overruled and stricken
out (26). If a juror so acts that no verdict can be rendered, this does not,
like a wrongful discharge of the jury by the judge, entitle the defendant
to go free, or protect him from a second jeopardy (27). A prisoner will not
be deemed to have consented to the withdrawal of a case from the jury,
merely because he kept silent. As was said by Mclver, C. J., in State v.
Richardson (28) : " It is true that it is stated in the ' case ' that when the
solicitor moved to withdraw the case from the jury, no objection was
made by the prisoner ; but it also appears in the ' case * that the prisoner
was not at that time represented by counsel, and it would be a harsh rule
to hold that defendant consented to a withdrawal of the case from the
jury, simply because he interposed no objection, which, possibly, he did
not know he had a right to do. Besides, consent is active, while not
objecting is merely passive. The oM adage ' silence gives consent ' is not
true in law ; for there it only applies where there is some duty or obliga-
tion to speak " (29). A change in a constitutional provision as to former
jeopardy, more faAourable to the prisoner, applies to a trial subsequently
begun, although the offence was committed prior to the change, where the
constitution expressly provides that all laws inconsistent with the new con-
stitution shall cease upon its adoption (30). In the case of Weaver v.
State (31), it was held that until a defendant entered his plea of not guilty,

22 State r. Washington, 89 N. Car. 525.

23 State r. Washington, 90 N. Car. 664 ; State r. Carland, 90 N. Car. 668.

24 SUte V. Ward, 48 Ark. 36.

25 Ball r. State, 48 Ark. 94.

26 Smith r. State, 22 Tex. App. 196.

27 Henning r. State, 106 Ind. 386.

28 47 S. Car. 166.

29 State r. Edwartls, 13 8. Car. 30 : State r. Serin, 32 S. Car. 401.
.30 State r. Richardson, 47 S. Car. 166.

31 83 Ind. 289.

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Vol. Ill] Thb Criminal Law Jouknal. 149

or, upon his refusal to plead, it had been entered for him, he could not be
regarded as in jeopardy. The court said, quoting from Bishop's Criminal
Law : " Not only must the tribunal bo made complete by the impaneling
of the jury, as already explained, in order to produce the legal jeopardy o£
which we are treating, but all other preliminary things of record necessary
to sustain the verdict of guilty, if rendered, must be done." It is true that
defendants, even in cases of felony, may waive formal arraignment, and it
is perhaps true that an accused person, submitting to a trial without an
arraignment will be deemed to have waived it ; but the calling upon the
d«*fendant to plead, and his plea made by himself or entered for him, would
seem to be a necessity. " The right of arraignment on a criminal trial,
may in some cases be waived, but a plea is always essential. The court
cannot supply an issue after verdict, where there has been no plea, not-
withstanding that the defendant consented to go to trial (32). In Ncwson
V. State (33), it was ruled that "a case is submitted when the prisoner has
been arraigned— the plea of not guilty filed— and the jury impaneled and

Tswom.'* In Douglass v. State (34), it was ruled that "an arraignment may,
in minor offences, be waived by the defendant, but a plea is necessary to

[form an issue. An issue in a criminal case cannot be supplied so as to
correspond with the verdict, where there has been no issue joined ; and a
verdict in a criminal case, where there has been neither arraignment nor
plea, is a nullity and no judgment can bo rendered thereon." This state-
ment of the law was reaffirmed in Davis v. State (35). A municipal court
is not deprived of jurisdiction to try an offence against a municipal ordi-
nance, by the fact that a prosecution is pending in a state court against
the same offender, for the same act as an offence against the general crimi-
nal law of the state (3C). Some courts have held however that a city court
has no right to punish an offence against a city ordinance, which at the
same time is punishable by the state courts. This view however does not
seem to be well taken. On the dismissal of an indictment on the motion
of the country attorney, a second indictment may be found by the same
grand jurj' for the same offence, on the evidence already received, on which
the former indictment was found, and it is not necessary that any new or
additional evidence be received. The nolle prosequi of the prosecutor is
not the same as the throwing out the indictment by the Judge (37).

Withdrawing a criminal prosecution from a jurj' which has been
charged with the trial of a prisoner, and dismissing the jury merely
because a witness was absent, are an acquittal and the prisoner cannot

32 Wharton Crimiual PI., 8th Ed., Sec. 409.

33 2 Ga. 60.

34 3 Wis. 820.
85 38 Wis. 487.

36 City Council of Andei-son r. John O'Douuell, 1 L. R. A. 632.

37 Btate of Minn. r. Pctcr»on, 28 L. R. A. 824, 1 Bishop Crim. Proc., sec. 870.

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150 TuE CiauiNAL Law Journal. [VoLIII

again be placed on trial, under a constitutional provision that no person
shall for the same oflEence be subject to be twice put in jeopardy o£ his
life or liberty (38). A suit for an injunction against the violation of a statute,
and punishment for contempt of such injunction, in addition to a crimi-
nal prosecution for the illegal act, do not violate the constitutional provision
against putting a person twice in jeopardy for the same offence (39). A
person is not twice put in jeopardy because he is subjected to an action for
a penalty, as well as to a criminal prosecution for the same offence (40). An
acquittal on a charge of a criminal offence is a bar to a prosecution of the
accused for perjury in swearing that he did not commit the offence (41)-
In the case of the United States v. McKee (42), the defendant had been
convicted and punished under a section of the revised statutes for conspir-
ing with certain distillers to defraud the United States by unlawfully
removing distilled spirits without the payment of the taxes thereon. He
was afterwards sued in a civil action, by the United States, under another
section, to recover a penalty of double the amount of the taxes lost by the
conspiracy and fraud. The court held that the two alleged transactions
were but one, and that the suit for the penalty was barred by the judg-
ment in the criminal case. The decision was put on the ground that the
defendant could not be twice punished for the same crime, and that the
former conviction and judgment were a bar to the suit for the penalty.
.Judge Van Fleet, in hijj Treatise on the Law of Former Adjudications,
p. 1242, sec. ij2S, says : "If there is a contest between the state and the
. defendant in a criminal case over an issue, I know of no reason why it is
not res adjiuUcata in another criminal case."

An ac({uittal on the charge of criminal libel in the use of certain
words contained in a published article, bars a subsequent prosecution for
libel in the use of other words contained in the same article, published at
the same time and in the same newspaper (43).

When one has committed a criminal act, the prosecutor may carve out
of it as large an offence as he may be able, but he cannot split and divide
it up into parts without violating the rule of law '* that a man shall not be
twice vexed for one and the same cause." As to habitual criminals it niav
be said that the constitutional provision against putting a person twice in
jeopardy for the same offence is not violated by imposing gre^iter penalties
upon persons convicted of a crime, if they had been previously convicted (44).
38 ?<tat€ of South Caroliua r, Richartlson, 47 S. Car. 160.

. ay State f. Roby, 142 lud. KJH ; Beedle r. Schoonover, 13o lud. 526 : Scoby r. Stevens 103
Ilia. 5o. ^ i

40 State r. Schoonover, 21 L. K. A. 767 ; Statj r. Stevens, 103 Ind. 55.

41 Coopor r. Commonwealth of Kentucky. 45 L. R. A 216.

42 Deli. 128.

43 State of California r. Stevens, 4 L. R. A. ^i:,.

Ww^64f "^^^^ "^^ Missouri 150 U. S. 673 : Kelley r. 1 oople, 115 lU. 583 : lugalls r. State, 48

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Vol. Ill] The (Jkiminal JjAW Journal. ' 151

It was said in Ingalls v. State (45), '* the increased severity of punishment
for a second or subsequent ofiEence is not a punishment of the person for the
first offence a second time, but a severer punishment for second offence,
because the commission of the second offence is evidence of the incorrigible
and dangerous character of the accused, which calls for and demands a
severer punishment than should be inflicted upon the person guilty of the
first crime." So much for the subject of these remarks, which is one of
the many safeguards against oppression and wrong, thrown around the
accused by our national and state constitutions. — C, L. J.

0. W. Payne.
Indianapolis, Ind.
45 Snpra, u


" While thou.samls. carcle«s of the <lauiiiinf( s»in,
Ki!»8 the Hook's outside, who ne'er lookM within."

— Ciucper,

In a recent address to a grand jury in Ontario, Mr. Justice Mabee
said : " There is undoubtedly a groat deal of perjury in our Courts of
law. I mean wilfully false statements. If there is any way of preventing
the evil there will l>e a much better administration of justice than now."

The prevalence of perjury in civil and criminal c^ses has also been the
subject of comment by judges and thrown prosecutors in other Provinces
of Canada. In the United States perjury seems to be alarmingly on the
increase. Not long ago the President of a Bar Association in that country,
after declaring that perjury was increasing, quoted communications from
judges in various States of the. Union in support of his statement.. .. Ho
also said : " In short, with reference to the prevalence of perjury, the time
has come when, in the words of another, justice intfst wear a veil, not that
she may be impartial, but that she may hide her face for shame. Some
tell us that the crime is committed mostly in the police and i)etty ( 'ourts,
where as a rule the witnesses belong to the vicious classes. But the fact
remains that it is committed in other Courts and by men professing high
station in society, church and state."

While such strong language could not fairly be applied to conditions
in Canada, it is nevertheless apparent that even here some better provision
is required to suppress the evil, by facilitating the punishment of persons
guilty of perjury. Our Code has improved the law on this subject by
abolishing some technicalities, which previously caused confusion and
doubt, and sometimes afforded loopholes by which perjurers when pro-
secuted could escape punishment, but, while our law defining this offence
is satisfactory, there is a manifest weakness in connection with the machine-
ry relied upon to enforce this law effectively. The best preventive of this

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152 The CnniiNAL Law Journal. [Vol. Ill

offeuco against public justice is the certainty of prompt punishment if the
crime be committed. But at the present time the crime is often committed
])ecau8e it is felt that there is not much danger of a prosecution. When-
ever other crimes are committed there is usually some one injured in per-
son or property who is l)ent on prosecuting the criminal, but where jwr-
juiy is committed in a Court of law, there is generally no inclination on
the part of the individual wronged, to institute legal proceedings oven
where the perjurer has caused miscarriage of justice. In the many cases
where the false oath is not credited and no prejudice is caused to the oppo-
site party, that individual has no disposition to go to the trouble of prose-
cuting the oflfender, as the offence is a difficult one to prove. While
legally it is immaterial whether the false oath was credited or not, or
whether the party against whom it is given was prejudiced thereby, as
the prosecution is grounded not on damage to the party but on the abuse
of public justice, yet, practically, if the perjurer has not been successful
in his attempt to thwart the ends of justice he is likely to leave the Court
house unmolested and perha[)s may repeat his offence with impunity, and
more successfully on some subsecjuent occasion. A person contemplating
the commission of .another crime, as, for instance, theft, knows that the
owner of the goods will j)romptly start a prosecution when it is discovered
that the goods are stolen, and the fear of such j)rosecution and punish-
ment often acts as a deterring force and prevents theft. But a person
conunitting perjury generally feels before-hand that he can safely take
the risk, without fear of temporal punishment. The purpose of the oath
is not primarily for those who under any circumstances would tell the
truth, but for those of dull conscience, and others who might have a
motive to testify falsely, — the fear of temporal and eternal punishment
being expected to influence the minds of such witnesses. If the fear of
temporal punishment ceases to exist in the mind of a witness who has a
motive in testifying falsely, then one great counteracting influence to the
motive to testify falsely is lost. The effect of the fear of eternal punish-
ment will be considered later in this article. As a rule, however, an
unscrupulous witness has his mind directed more towards winning the
suit than saving his soul, and, if influenced by fear at all, would be apt, at
the moment of testifying, to four a [)resent penit<?ntiary more than a
future hell.

It may, perhup.-, bo said tliat the disinclination of a private suitor to
initiate a prosecution for perjury has been recognized by our law-makers,
and that the difficulty has been uwt by enacting s. 4 of c. 154 of the
Revised [Statutes of Canada, which section has been continued in force by
the Code. That section which was adapted from s. 19 of the Imperial
statute, 14 & 15 Vict., c. 100, provides, in substance, that any judge
before whom any trial is held may, " if it appears to him that any person

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Vol III] The Obiminal Law Journal. 153

has been guilty of ^vilful and corrupt perjury," in any evidence given
before him, direct such person to be prosecuted for such perjury, " if
there appears to such judge a reasonable cause for such prosecution," and
may commit such person.

It is a significant fact, however, that the power conferred by this
section has been rarely, if ever, exercised in England or in Canada, and
the provision must bo considered as having failed in its purpose. A
commitment under this section by a judge would be almost as damaging
to the character of a witness as an actual conviction, and there will always
be a disinclination to exercise such a dangerous power unless the perjury
of the witness is absolutely conclusive and unmistakable, and this can
rarely be conclusively determined by the judge, in trying anotlier issue.
It is possible that what may appear to be a false oath, taken nialo atiimo,
can be shown ultimately to be the result of honest mistake, due to that
treacherous faculty the memorj^ or to the imperfect understanding of the
witness, or to a reprehensible lack of taking pains to be exact, rather than
to a deliberate intent to lie.

Some years ago a Judge in one of the County Courts in England
became satisfied that the plaintiff in a civil case tried before him had
committed perjury, but the Judge shrank from committing the witness for
perjury and took the course of sending a copy of the evidence to the
director of public prosecutions w ith a representation that in his opinion the
plaintiff had connnitted. perjury during the hearing of the case. In doing
so the judge stated that although the statute empowered him to commit
the plaintiff for trial at the next assizes without the necessity of any exami-
nation before a magistrate, yet it would be far more satisfactory to him
that the criminal charge should be investigated by an indei>endent tribunal
in the ordinary way and he did not therefore exercise this power.

Other English judges are inclined to follow this course rather than
re>ort to the extreme power conferred by the statute. Moreover it might
be found on a thorough investigation, that even if perjury had l)een com-
mitted, a conviction could not be obtiiined, and this important fact, the
ascertaining of which would save an expensive and al)ortive trial, could
more readily and more appropriately be ascertained by u director of public
prosecutions or an Attorney-General than by one of the judiciary, who,
while considering that there was " a reasonable cause for such prosecution"
upon the evidence before him, would also know that such evidence would
usually require to be greatly strengthened by corroborative evidence in
order to secure a conviction. Would it not be better to add to the section
in question a provision which would direct the judge at his option or upon
request of either party to take the alternative course of sending the evi-
. deuce to the Attorney-General so that the Crown might institute a

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154 The Oriminal Law Jouunal. [Vol. Ill

ihorougk investigation and assume the responsibility and expense of any
prosecution, from its initiation ?

But while the fear of legal punishment for perjury is in many eases
a better security tor truth than the tear of punishment in the next world,
there are, nevertheless, many witnesses who are influenced by the latter
consideration. An eminent authority has stated tliat the design of the
oath is not to call the attention of God to man, but the attention of man
to God, not to call upon Him to punish the wrong-doer, but on the wit-
ness to remember that He will assuredly do so. The ceremony of the oath
is not intended primarily for persons who have an active conscience, a
high regard for truth and an abiding sense of the presence of God even-
where in this world. In the words of Hudibras —

" Oaths were not purpos'd more than law
To keep the Good and Just in awe."

The oath was not intended on the other hand for very bad men who
would violate it at all times. For very good men, it is unnecessary ; for
ver\^ bad men, it is useless. The judicial oath, -however, is expected to
serve a useful purpose in dealing with a stratum lower in morality than
the best citizens and higher than the worst. The utility of oaths has beea
justified in the following words by Archbishop Seeker, as quoted in Ram
on Facts, p. 222, :

" It must be owned great numbers will certainly speak truth without
an oath, and too many will not speak it with one. But the generality of
mankind are of a middle sort, neither so virtuous as to be safely trusted,
in cases of importance, on their bare word ; nor yet so abandoned as to
violate a more solemn engagement. Accordingly we find by experience
that many will verbally sjiy what they will by no means \^nture to swear ;
and the difference which they make between these two things is often
indeed much greater than they should ; but still it shows the need of insis-
ting on the strongest security.''

The oath is calculated to influence witnesses possessing a dull con-
science. AVhile the oath will not generate a conscience it will quicken a dull
one. Some witnesses, indeed, never consider themselves 1)ound to tell the
truth on the witness stand unless they actually kiss the book, or unless
their bare hand touches the book, which presumably is the reason why the
ungloved hand nmst be used. They often try to kiss their thumbs instead
of the l)ook, thereby hoping to avoid eternal punishment for perjury by
omitting what they always will consider a part of the oath essential to
obtain a hold upon their consciences. Their consciences are as peculiar as
those possessed by certain other witnesses who commit perjury (but think
they do not), by swearing to a statement which in one sense is true, but
which in the sense in^^ended to be conveyed by the witness is false. Such

Digitized by

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 19 of 91)