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Amendment! A party cannot waive a constitutional right when its effect is to give the court jurisdiction. The liberty of the citizen is a donation of the Great Creator, and cannot be taken by persons upon their own authority, even with the consent of the citizen whose liberty is taken; but it must be taken by due process of law. None of the fundamental requisites to the preceding, which makes up due process of law, can be so waived as to deprive the person whose liberty is taken from him of afterwards resorting to legal means to obtain his liberty."

Except in cases arising in the land or naval forces.The purpose of this provision was to prevent any conflict between the civil and military or naval authorities in the administration of justice. Cases arising in the military or naval departments of the government are subject to the “rules for the government and regulation of those forces which Congress is empowered to make." Courts martial are no part of the judicial system of the United States, and within their proper jurisdiction, their proceedings are not reviewable by the civil authorities.16

When in actual service in time of War or public danger.—The words, “when in actual service in time of war or public danger," have been held to apply only to the militia, and not to the army of the United States.17

Nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb.

History of this Clause.—This is a very ancient maxim of the law. It was mentioned by Bracton, who wrote in the thirteenth century. The expression in the criminal law was, non bis in idem-no one shall be tried twice for the same offense. The corresponding expression in civil cases, which is also of great antiquity is, nemo debet bis vexari pro una et eadem causano one shall be vexed twice for one and the same cause. The provision was as much designed to prevent an offender from being punished twice for the same offense as from being tried twice for it.19

18 Kintz v. Moffitt, 115 U. S., 487, 500.
17 Johnson v. Sayre, 158 U. S., 109, 115.
18 Ex parte Lange, 18 Wall., 163, 168.
19 Ex parte Lange, 18 Wall., 173.

18

The words “life or limb” in the clause do not seem to add force or strength to it, and could well have been omitted. Long ago in England many offenses were punished by dismemberment of limbs, and that was the origin of the words in the clause, but when the Constitution was adopted loss of limb was not inflicted as a punishment in any State, and had long been abandoned in England.20 Consequently there was no reason for this expression in the amendment.

The clause is one of the great safeguards of personal liberty, and is probably now found in the constitution of every State in the Union. But the nearest approach to it when the Constitution was adopted was found in the Constitution of New Hampshire of 1784, which provided, “No subject shall be liable to be tried after an acquittal for the same crime or

offense.”

The benefit of the provision has been extended in the United States to include misdemeanors. In ex parte Lange, 21 it was held:

“To every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute, a plea of autrefois acquit or autrefois convict is a good defense."

What is jeopardy ?-Jeopardy is the situation of a prisoner when a trial jury is sworn and empaneled to try his case upon a valid indictment, and the jury has been charged with his deliverance. Again, jeopardy is the peril in which a prisoner is put when he is regularly charged with a crime before a tribunal properly organized and competent to try him.2

When is a person in jeopardy?-A person is in jeopardy whenever he is put on trial before a competent court and jury under a valid indictment.23 It is being twice put in jeopardy which the amendment forbids. The prohibition is not against being punished twice, but against being put in jeopardy twice; and the accused, whether

22

20 People v. Goodwin, 18 Johnson, N. Y., 187, 200. 21 18 Wall., 163, 169.

22 United States v. Mays, 1 Idaho, 763, 770. Ex parte Fenton, 77 Cal., 183, 184.

23 Ex parte Glenn, 111 Fed. Rep., 261.

convicted or acquitted, is equally put in jeopardy at the first trial.24

What does not amount to being twice put in jeopardy. -It is an established rule in the Federal Courts that an acquittal of a defendant before a court which did not have jurisdiction does not amount to being twice put in jeopardy, and also it is an established rule in such courts that where a jury is discharged in criminal cases during the trial for reasons satisfactory to the judge, and the defendant is subsequently tried by another jury, he has not been twice in jeopardy. Nor can one be in jeopardy unless the court has jurisdiction of the case.

An acquittal before a court having no jurisdiction is like all the proceedings in the case, absolutely void, and, therefore, no bar to a subsequent indictment and trial in a court which has jurisdiction of the offense. Where a jury is discharged in a criminal case during the trial for reasons satisfactory to the judge, and the defendant is subsequently tried by another jury, he is not twice in jeopardy. 25

After a jury had been in retirement for forty hours, and had announced in open court that they were unable to agree on a verdict, and were discharged by the judge against defendant's consent, it was held to be a question to be determined by the presiding judge in the sound exercise of his discretion, and the defendant could be put on trial by another jury.26

A court, without the consent of the defendant, and under exception, discharged the jury and directed another jury to be called. The defendant pleaded he had been once in jeopardy for the same offense for which he now stood charged. It was held that courts of justice are invested with the authority to discharge a jury from giving a verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy.27

24 United States v. Ball, 163 U. S., 662, 669. 25 Simmons v. United States, 142 U. S., 148, 153. 28 Logan v. United States, 144 U. S., 263, 297, 298. 27 Thompson v. United States, 155 U. S., 271, 273.

In United States v. Perez 28 the defendant was tried for a capital offense, and the jury, being unable to agree, was discharged by the court without the consent of the prisoner or the consent of the attorney for the United States. The prisoner thereupon claimed his right. The court held: “We are of opinion the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act or the ends of public justice would otherwise be defeated."

United States v. Haskell29 was a case where the jury returned a verdict of guilty upon the first count and not guilty upon the others. On being polled (p. 407) one juryman declared after much agitation that he was not quite collected, and answered, Not guilty.” The court, being satisfied from the appearance and conduct of the juror, as well as from the declaration of many of the jurymen as to his conduct and speeches, that he was insane and unfit to act as a juryman, made the following entry on the minutes : The jury, having been kept together thirty-six hours, and more than twenty-four hours without refreshments, and there being no prospect of their agreeing, and the court being satisfied of the insanity of one of the jurymen, discharged the jury without the consent of the counsel for the prisoner.” The jury was accordingly discharged, and at a subsequent trial, counsel for the defendant tendered a special plea, setting forth the arraignment of the prisoner's former trial, together with all the circumstances thereof, and claimed that the discharge of the jury was equivalent to an acquittal. In passing upon the question the court said (p. 407): "Is this plea to be supported in reason, and on principle? We think it is not, because we consider the authority of the court to discharge the jury, to rest in the sound discretion of the court. It can rest nowhere else." Quoting from another authority the court said (p. 410): The moment it is made to appear to the court by satisfactory evidence, that the health of a single juryman is so affected as to incapacitate him for doing his duty, the case of necessity arises which authorizes the court to discharge the jury."

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28 9 Wheaton, 579, 580. 29 4 Wash. C. C., 402.

In United States v. Jim Lee et al.,30 the case was submitted to the jury at 1:30 p. m. The jurors were discharged by the court at 4:05 p. m. of the same day, being first asked in the presence of the defendants and their attorney if they had agreed upon a verdict, to which they replied they had not, and that it was impossible to agree; whereupon the court ordered their discharge. Subsequently an affidavit was produced showing the jury were absent from the room for one hour for luncheon, being attended by an officer of the court. It was afterwards contended by counsel for the defendants that the jurors were not given a reasonable time for deliberation, and were discharged without necessary and reasonable cause therefor, and to place the defendants upon trial again would be a violation of their rights under the fifth amendment to the Constitution. The court held that the contention was not sustained by the record, which says that such discharge was ordered by the court because of the inability of the jurors to agree upon a verdict. The discharge of the jury for such a cause was not in judgment of law equivalent to an acquittal, and when a defendant was subsequently placed upon trial before another jury for the same offense he was not thereby twice put in jeopardy within the meaning of the fifth amendment.

The court further held (p. 743): That the declarations of jurors, while not conclusive, are proper evidence for the consideration of the court in determining whether there is any reasonable probability that longer deliberation would result in a verdict. The length of time which

. is sufficient for proper deliberation upon the part of the jury must, from the necessity of the case, rest in the discretion of the court-a discretion to be exercised in view of all the circumstances of the particular case; and it has been held that, when the court had discharged the jury

80 123 Fed. Rep., 741.

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