leaf,158 "was for want of substance in setting forth the offense, or for want of jurisdiction in the court, so that for either of these causes no valid judgment could have been rendered, it is no bar to a second prosecution; but though there be error, yet if it be in the process only, the acquittal of the party is nevertheless a good bar. The sufficiency of the bar is tested by ascertaining whether he could legally have been convicted upon the previous indictment; for if he could not, his life or liberty was not in jeopardy."159 But, in a recent case, in the Supreme Court of the United States, this doctrine, while admitted to have the support of many authorities, was denied, the court saying: "After the full consideration which the importance of the question demands, that doctrine appears to us to be unsatisfactory in the grounds on which it proceeds, as well as unjust in its operations upon those accused of crime; and, the question being now for the first time presented to this court, we are unable to resist the conclusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing."160 § 2731. Former jeopardy-Burden and evidence to sustain.-To sustain the plea of former acquittal, conviction or jeopardy, the burden is generally held to be upon the defendant11 to prove by a pre A. 685, 870; 59 L. R. A. 578, note; 18 Cent. L. J. 43, 63, 392, note; 60 Cent. L. J. 184. 158 3 Greenleaf Ev., § 35. 1592 Hawkins P. C., chap. 35; chap. 36, §§ 1, 10, 15; 2 Hale P. C. 246-248; Commonwealth v. Goddard, 13 Mass. 455; Wharton Am. Cr. Law 190-204; People v. Barrett, 1 Johns. (N. Y.) 66; Rex v. Emden, 9 East 437; Commonwealth v. Peters, 12 Metc. (Mass.) 387; Reg. v. Drury, 3 Cox Cr. Cas. 544, 3 Car. & Kir. 193, 18 L. J. (M. C.) 189; see also, 1 Bishop Cr. Law 1021; Vaux's Case, 4 Coke 44. 100 Ball v. United States, 163 U. S. 662, 16 Sup. Ct. 1192. The former indictment charged murder, but lacked the requisite fullness and precision, and the verdict of the jury was received on Sunday, yet the former acquittal was held a bar. 161 Faulk v. State, 52 Ala. 415; Emerson v. State, 43 Ark. 372; Jenkins v. State, 78 Ind. 133; Cooper v. State, 47 Ind. 61; Marshall v. State, 8 Ind. 498; Duncan v. Commonwealth, 6 Dana (Ky.) 295; Vowells v. Commonwealth, 83 Ky. 193, 7 Ky. L. R. 176; Commonwealth v. Wermouth, 174 Mass. 74, 54 N. E. 352; Commonwealth v. Daley, 4 Gray (Mass.) 209; Brown v. State, 72 Miss. 95, 16 So. 202; Rocco. v. State, 37 Miss. 357; State v. Wister, 62 Mo. 592; State v. Small, 31 Mo. 197; State v. Andrews, 27 Mo. 267; State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27; People v. Cramer, 5 Park. Cr. ponderance of the evidence,162 both the former conviction, acquittal or jeopardy and the identity of the person and of the offense. The identity of the offense may generally be shown by producing the record, and showing that the same evidence, which is necessary to support the second indictment, would have been admissible and sufficient to procure a legal conviction upon the first.163 A prima facie case on this point being made out by the prisoner, it has been said. that it is then incumbent on the prosecutor to meet it by proof that the offense charged in the second indictment was not the same as that charged in the first.164 It is not necessary that the two charges should be precisely alike in form, or should correspond in things which are not essential and not material to be proved; the variance, to be fatal must be in matter of substance. The former conviction or acquittal must usually be proved by the record, unless a proper foundation is laid for secondary evidence,165 but parol evidence is admissible, in a proper case, to show the identity of the offense166 as well as the person,' ,167 and, perhaps, on other matters when required by circumstances.168 "Though the general rule," says Greenleaf, "is thus strongly held against a second trial in criminal cases, yet it has always been held, that, to the plea of autrefois acquit, or Cas. (N. Y.) 171; Bainbridge v. State v. Scott, 1 Kans. App. 748, 42 Pac. 264; State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27; Davidson v. State, 40 Tex. Cr. App. 285, 49 S. W. 372, 50 S. W. 365; Willis v. State, 24 Tex. App. 586, 6 S. W. 857. 163 Archibold Cr. Pl. 87; Rex v. Emden, 9 East 437; Rex v. Clark, 1 B. & B. 473; Rex v. Taylor, 3 B. & C. 502; 1 Russell Crimes 832; Commonwealth v. Roby, 12 Pick. (Mass.) 496; Rex v. Vandercomb, 2 Leach C. C. (4th ed.) 316; see also,. Dunn v. State, 70 Ind. 47; Moore v. State, 51 Ark. 130, 10 S. W. 22. Rex v. Bird, 5 Cox Cr. Cas. 11, 2 Eng. L. & Eq. 439; but see, Com monwealth v. Daley, 4 Gray (Mass.) 209. 165 Brown v. State, 72 Miss. 95, 16 So. 202; Walter v. State, 105 Ind. 589, 5 N. E. 735; Bailey v. State, 26 Ga. 579; Robbins v. Budd, 2 Ohio 16; State v. Hudkins, 35 W. Va. 247, 13 S. E. 367. 106 State v. Waterman, 87 Iowa 255, 54 N. W. 359; Bainbridge v. State, 30 Ohio St. 364; Brown v. State, 72 Miss. 95, 16 So. 202; Wilkinson v. State, 59 Ind. 416, 26 Am. R. 84; Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508. 59. 187 Reg. v. Austin, 2 Cox Cr. Cas. 105 See, Riley v. State, 43 Miss. 397; Bainbridge v. State, 30 Ohio St. 264; State v. Smith, 33 N. Car. 33; Commonwealth v. Dascom, 111 Mass. 404; State v. Judge, 42 La. Ann. 414, 7 So. 678. autrefois convict, in prosecutions for misdemeanors, it is a sufficient answer that the formal acquittal or conviction was procured by the fraud or evil practice of the prisoner himself."169 And it is held that the prisoner is entitled to a trial by jury upon such an issue.170 § 2732. Provinces of court and jury.-As a general rule in criminal cases as well as in civil cases it is the province of the court to determine the law and of the jury to determine the facts.171 But in some states the constitution provides that the jurors shall be judges of the law as well as the facts.172 Even under such constitutional provisions, however, it is generally held that while they may have the power to disregard the instructions of the court, it is their duty to accept such instructions as to the law and the court has the right to so charge,173 at least where the jurors are also informed of their 169 3 Greenleaf Ev., § 38; Chitty Cr. Law 657; Rex v. Bear, 2 Salk. 646; Rex v. Furser, Sayer 90; Rex v. Davis, 1 Show. 336; Anonymous, 1 Lev. 9; Rex v. Mawbey, 6 Term R. 619; State v. Brown, 16 Conn. 54; State v. Little, 1 N. H. 257; Commonwealth v. Kinney, 2 Va. Cas. 139; Halloran v. State, 80 Ind. 586; State v. Moore, 136 N. Car. 581, 48 S. E. 573. 170 See, Caldwell v. State, 69 Ark. 322, 63 S. W. 59; Funderburk v. State, (Tex. Cr. App.) 64 S. W. 1059; see also, State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27. 171 Sparf v. United States, 156 U. S. 51, 15 Sup. Ct. 273; Commonwealth v. Porter, 10 Metc. (Mass.) 263; Hamilton v. People, 29 Mich. 173; State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. 775; State v. Smith, 6 R. I. 33; Duffy v. People, 26 N. Y. 588; Erskine's famous contest over this question in libel cases is familiar to all. See, Rex v. St. Asaph, 3 Term R. 428; Rex v. Woodfall, 5 Burr. 2661; Rex v. Oneby, 2 Str. 766. Of course questions as to the admissibility of evidence are ordinarily for the court. People v. Ivey, 49 Cal. 56; Berry v. State, 31 Ohio St. 219, 27 Am. R. 506; State v. Perioux, 107 La. Ann. 601, 31 So. 1061; State v. Williams, 67 N. Car. 12; Dugan v. Commonwealth, 102 Ky. 241, 43 S. W. 418. 72 See, Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Hudelson v. State, 94 Ind. 426; State v. Gannon, 75 Conn. 206, 52 Atl. 727; State v. Armstrong, 106 Mo. 395, 16 S. W. 604; Goldman v. State, 75 Md. 621, 23 Atl. 1097; see also, Thompson Tr., §§ 2132-2148. 178 State v. Gannon, 75 Conn. 206, 52 Atl. 727; Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Commonwealth v. McManus, 143 Pa. St. 64, 21 Atl. 1018, 14 L. R. A. 89; Ford v. State, 101 Tenn. 454, 47 S. W. 403; but see, Hudelson v. State, 94 Ind. 426, Elliott and Hammond, JJ., however, dissenting. See generally, Commonwealth v. Anthes, 5 Gray (Mass.) 185; United States v. Battiste, 2 Sumn. (U. S.) 240; Montgomery v. State, 11 Ohio 424; 1 Coke Litt. 155b, note 5; 3 Cr. L. Mag. 484; 5 South. L. Rev. (N. S.) 352; Cooley Const. Lim. (4th ed constitutional power. The subject is treated as follows in a recent case: "Whenever a question of law is presented, whether it concern the sufficiency of the complaint, the impaneling of the jury, the admission or rejection of testimony, or the conclusion of law from the facts admitted or found, the court alone answers; whenever the pleadings terminate in an issue of pure fact, the jury alone answers. It happens, however, that there are questions-owing mainly to the form of procedure, but in part to the inherent nature of some questions where the law and the fact are complicate, where the pure question of fact cannot be fairly determined except in relation to the law, and the pure question of law cannot be determined until the facts are found. It is impossible for the court alone to answer such complicate question without infringing on the province of the jury, or for the jury alone to answer without infringing on the province of the court. In such a case it may be practical for the jury to separate the fact from the law and to find the facts, leaving the court to then declare the law; if so, the jury returns a special verdict, finding the facts involved in the complicate question, and the court declares the law on the facts so found. Here court and jury still exercise their respective powers separately. But if such separation is impracticable, the respective powers of court and jury are preserved by the judge's stating his determination of the law hypothetically-if the facts are so and so, this is the law-leaving the jury to find the fact in view of the law so determined by the judge, by the return of a general verdict. When the plea of not guilty presents, as the issue, a question in which fact and law are blended, the jury must still answer to the fact, and the court to the law; but whether that answer shall be given separately, by means of a special verdict, whereby the court determines the law directly upon facts already found by the jury, or shall be given, as it were, jointly, by means of a general verdict, whereby the court determines the law hypothetically in respect to the facts as the jury may properly find them, is at the option of the jury. And this opposition, i. e., the right to return a general 397, et seq.; People v. Worden, 113 Cal. 569, 45 Pac. 844; Parrish v. State, 14 Neb. 60; Adams v. State, 29 Ohio St. 412; State v. Miller, 53 Iowa 154, 4 N. W. 438; Edwards v. State, 53 Ga. 428; Berry v. State, 105 Ga. 683, 31 S. E. 592; State v. Johnson, 30 La. Ann. 904; but com pare, Fisher v. People, 23 Ill. 218; Spies v. People, 122 Ill. 1, 12 N. E. 865, 3 Am. St. 320; Fowler v. State, 85 Ind. 538; State v. Zimmerman, 31 Kans. 85, 1 Pac. 257; Beard v. State, 71 Md. 275, 17 Atl. 1044, 4 L. R. A. 675, 17 Am. St. 536. verdict upon the issue joined to the jury, is another essential feature in trial of criminal causes by jury. It is evident that, as a general verdict involves an application of law as declared by the court to the facts as found from the evidence, the jury must consider the law in connection with the evidence in reaching their ultimate conclusion; and in this limited sense they may with doubtful accuracy be called judges of the law; but, as the law determined by the courts is the law they must consider, it is clear that, in no sense which involves any independent determination of what the law of the state is, are they the judges of the law."17 The court may direct a verdict of acquittal in a proper case,175 but the accused has a constitutional right. to a trial by a jury of his peers. For this reason it can seldom happen that a verdict of guilty can properly be directed by the court.176 This is especially true where the constitution also makes the jurors judges of the law as well as the facts even though they are not the sole and exclusive judges of the law. § 2733. Cautionary instructions.-Certain defenses, such as alibi and insanity, are often resorted to by prisoners who are in reality guilty and these defenses are therefore sometimes looked upon with disfavor or suspicion by courts as well as juries. It is in regard to such matters as well as in regard to the credibility of certain witnesses or classes of witnesses, or the weight to be given to their testimony, that error is most often committed by invading the province of the jury. Different courts have taken somewhat different views as to the extent to which cautionary instructions may be given without error, but, while attention may doubtless be called to the general nature of the defense and the jury may be instructed as to what they may take into consideration, in certain respects, in regard to such 174 State v. Gannon, 75 Conn. 206, Pa. St. 591, 29 Atl. 272; State v. 52 Atl. 727, 732, 733. 175 Commonwealth v. Merrill, 14 Gray (Mass.) 415; Commonwealth v. Lowrey, 158 Mass. 18, 32 N. E. 940; State v. Trove, 1 Ind. App. 553, 27 N. E. 878; State v. Green, 117 N. Car. 695, 23 S. E. 98; State v. Warner, 74 Mo. 83; People v. Ledwon, 153 N. Y. 10, 46 N. E. 1046; State v. Meyer, 69 Iowa 148, 28 N. W. 484. 176 Commonwealth v. Werntz, 161 Winchester, 113 N. Car. 641, 18 S. E. 657; State v. Picker, 64 Mo. App. 127; Tucker v. State, 57 Ga. 503; State v. Wilson, 62 Kans. 621, 64 Pac. 23, 52 L. R. A. 679; Perkins v. State, 50 Ala. 154; Duffy v. People, 26 N. Y. 588; United States v. Taylor, 11 Fed. 470; but see, People v. Nuemann, 85 Mich. 98, 48 N. W. 290; People v. Elmer, 109 Mich. 493, 67 N. W. 550. |