Page:Federal Reporter, 1st Series, Volume 9.djvu/254

 HOLMES V, OBEGON & CALIFOBNIA E. CO. 239 �in fact eommitted, and the party charged is tried, found and adjudged guilty upon an indictment isontaining proper allegations of the juris- dictional facts, aud hanged,are the judge and jury Who tried the case, and the sheriff who exeouted the convicted prisoner,— I will not say murderers, — but guilty of taking the life of a citizen upon a proceed^ ing absolutely void, and without the authority of law ? Or, suppose the party charged is indicted and tried in the wrong county, and acquitted upon the sole ground that the homicide was eommitted in self-defence, can he be again indicted for the same offence in each of the four or more other counties, and acquitted on the same ground, until the last, which is in fact the proper county, and there convicted and hanged? Such might be the resuit if the jurisdictional fact is not conclusively determined in the first case, and the judgment therein is void for want of jurisdiction. Gn a second indictment in another county, the plea of former acquittai would not avail if the court had no jurisdiction to try the case. If the judgment is void for one purpose on that ground, it must be void for all. The party charged would not be twice in jeopardy,ifor he cannot be in legal jeopardy when the court bas no jurisdiction to act in the case, and ita action is a nullity. Void things are as no things. A conviction on an insufficient indictment is not a bar to a second indictment, because on an insufficient indictment the party is not in jeopardy. U. S. y. Gihert, 2 Sumn. 39; Whart. Crim. PL & Fr. (8th Ed.) § 507. Sd', also, there is no jeopardy when the jury is discharged without ren- dering a verdict for sufficient cause» as death or insanity of a juror, or where it is impossible for the jury to agree. U. S. v. Ferez, 9 Wheat. 579; U. S. v. Haskell, e Wash. 410. In the Vaux Case, 2 Coke, Eep. 388, the court held — �" That the reason of autrefois acquit was because where the maxim of the common law is that the life of a man shall not be twice put in jeopardy for one and the same offence, [and that is the reason and cause why autrefois acquitted or convicted of the same offence is a good plea,] yet it is intended of a lawful acquittai or conviction, for if the conviction or acquittai is not law- ful his life was never in jeopardy. 2 Sumn. 41. If it is not lawful to convict a man on an insufficient indictment, and for that reason the party so convicted is not in jeopardy, it is certainly not lawful to convict him by a court that has no jurisdiction to try the case, and whose judgment oan be set aside as col- laterally void; and a conviction by such a court cannot put the person in jeopardy. The close of the term of the court, under the statute, pending a trial, also justifies a discharge of a jury, and the party is not. in jeopardy, because a continuance of the trial after the close of the term would be unlaw- ful. The court has no authority to proceed. Its judgment would be unlaw- ful, and the party not put in jeopardy. Whart. Crim. PI. &'^i. g 513. A for- ��� �