Offenses against Public Justice

Under this head may be classed bribery of United States judges or legislators; extortion and embezzlement by public officers, and other misconduct in office; obstructing United States officers in the service of process; obstructing justice in the federal courts by intimidating, influencing, or impeding any juror, witness, or officer; and perjury in the United States courts.*7 47

PERSONS SUBJECT TO OUR LAWS

172. GENERAL RULE-As a rule, all persons within the territorial limits of a country are subject to its

laws, and the rule applies both to the states and the United States.

173. PERSONS EXEMPT-But under the law of nations the following persons are not responsible to our laws:

(a) Foreign friendly sovereigns and their attendants and effects.

(b) Foreign ambassadors, ministers, and diplomatic agents, with their servants and effects, but not consuls.

(c) Foreign friendly armies and navies peaceably within our territory.

(d) Enemies in war committing belligerent acts.

All persons within our territory are subject to our laws except foreign friendly sovereigns, or their representatives, and attendants, and enemies committing belligerent acts in time of war. A foreign private citizen visiting us is as

471 Whart. Cr. Law, § 262,

For

much amenable to the law as one of our own citizens. eign ministers, ambassadors, and diplomatic agents represent their sovereign, and, like him, are exempt. The rule includes secretaries of legation. Consuls, however, being mere commercial agents, are not exempt, and may be criminally liable for their acts. It is probable that a minister would forfeit his privilege if he were to be guilty of treason against our government. The exemption does not deprive one of our citizens from defending himself against an assault by a foreign minister but he may repel force by force. Foreign friendly armies or navies, if peaceably in our harbors or passing through our territory by our consent, represent their sovereigns, and are not subject to our laws; but the rule does not apply to foreign merchant vessels.48

48 1 Bish. New Cr. Law, § 124 et seq.; 1 Kent, Comm. 38 et seq.; State v. De La Foret, 2 Nott & McC. (S. C.) 217; Respublica v. De Longchamps, 1 Dall. (Pa.) 111, 1 L. Ed. 59.

CHAPTER XVIII

FORMER JEOPARDY

174. In General.

IN GENERAL

174. No man can be put twice in jeopardy for the same offense.1

EXCEPTION-A person may waive the right to plead former jeopardy.

It is said by Blackstone that the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the English common law: that no man is to be brought into jeopardy of his life more than once for the same offense; and hence it is allowed as a consequence that when a man is once found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime.2 It is also said. by the same commentator that the plea of autrefois convict, or a former conviction for the identical crime, though no judgment was ever given, or perhaps will be, is a good plea in bar to an indictment. This was the common law. By the Constitution of the United States, however, it is provided that "no person shall be * subject, for the

1 For a fuller treatment of this subject, see Clark, Cr. Proc. pp. 382-407.

24 Bl. Comm. 335.

34 Bl. Comm. 336.

CLARK CR.L.3D ED.-32

same offense, to be twice put in jeopardy of life and limb"; * and there are similar provisions in the Constitutions of the different states. These provisions are probably merely declaratory of the doctrine of the common law. Under them there need be no former acquittal or conviction to bar a subsequent prosecution for the same offense. It is sufficient if the accused has once been put in jeopardy.

What Constitutes Jeopardy

After a person has once been put upon his trial before a court of competent jurisdiction, upon an indictment or information, which is sufficient to sustain a conviction, and the jury has been charged with his deliverance, he is in jeopardy; and if afterwards for any reason the jury are discharged unnecessarily and without his consent, he is entitled to his discharge, and cannot again be tried. Discharge of a prisoner by a committing magistrate, or refusal of a grand jury to indict him, does not prevent a subsequent prosecution, as there is no jeopardy. Jeopardy only begins when defendant pleads to the indictment, and has been put upon his trial, and this is not until the jury has been fully impaneled and sworn. At any time before

4 Const. U. S. Amend. art. 5.

5 Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; State v. Norvell, 2 Yerg. (Tenn.) 24, 24 Am. Dec. 458; Price v. State, 19 Ohio, 423; STATE v. SOMMERS, 60 Minn. 90, 61 N. W. 907, Mikell Illus. Cas. Criminal 264.

Law,

6 McCann v. Com., 14 Grat. (Va.) 570; Com. v. Hamilton, 129 Mass. 479; Com. v. Miller, 2 Ashm. (Pa.) 61; State v. Whipple, 57 Vt. 637; Ex parte Clarke, 54 Cal. 412. But if the magistrate has jurisdiction to try, and takes jurisdiction, a plea of former jeopardy is good. State v. Bowen, 45 Minn. 145, 47 N. W. 650; Com. v. Sullivan, 156 Mass. 487, 31 N. E. 647.

7 People v. Fisher, 14 Wend. (N. Y.) 9, 28 Am. Dec. 501; Stuart v. Com., 28 Grat. (Va.) 950; State v. Hastings, 86 N. C. 596; Alexander

this, the prosecution may be discontinued without prejudice to a new indictment and a prosecution thereon. As soon, however, as the jury has been sworn, jeopardy begins; and if, after that, the indictment is quashed, or a nolle prosequi entered the defendant is entitled to his discharge.10

11

It is essential to constitute jeopardy that the court in which the accused is put upon his trial shall have jurisdiction. If it is without jurisdiction there can be no valid conviction, and hence there is no jeopardy. There must be a sufficient indictment, or the court has no authority to proceed; and therefore if the indictment is invalid, because of fatal defects in the organization or constitution of the grand jury, or because it is so defective in its allegations that a conviction will be set aside, there is no jeopardy.12

v. Com., 105 Pa. 1; State v. Burket, 2 Mill, Const. (S. C.) 155, 12 Am. Dec. 662.

8 Com. v. Tuck, 20 Pick. (Mass.) 356; State v. McKee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499; Clarke v. State, 23 Miss. 261. Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; Morgan v. State, 13 Ind. 215; People v. Webb, 38 Cal. 467; Nolan v. State, 55 Ga. 521, 21 Am. Rep. 281; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708.

10 People v. Cage, 48 Cal. 323, 17 Am. Rep. 436; O'Brian v. Com., 9 Bush (Ky.) 333, 15 Am. Rep. 715; Com. v. Hart, 149 Mass. 7, 20 N. E. 310; Klock v. People, 2 Parker, Cr. R. (N. Y.) 676.

11 Com. v. Peters, 12 Metc. (Mass.) 387; Weaver v. State, 83 Ind. 289; State v. Parker, 66 Iowa, 586, 24 N. W. 225; Phillips v. People, 88 Ill. 160; State v. Odell, 4 Blackf. (Ind.) 156; State v. Hodgkins, 42 N. H. 474; State ex rel. Barbee v. Weatherspoon, 88 N. C. 19; State v. Charles, 16 Minn. 474 (Gil. 426).

12 Weston v. State, 63 Ala. 155; Kohlheimer v. State, 39 Miss. 548, 77 Am. Dec. 689; People v. Clark, 67 Cal. 99, 7 Pac. 178; Com. v. Loud, 3 Metc. (Mass.) 328, 37 Am. Dec. 139; Pritchett v. State, 2 Sneed (Tenn.) 285, 62 Am. Dec. 468.