Page:Harvard Law Review Volume 10.djvu/270

244 244 HARVARD LAW REVIEW, widely accepted ; and it is held not to conflict with the general principle, made binding on our Federal Courts by the Constitution, that no man shall be twice put in jeopardy for the same offence. The contention u that the prisoner cannot be said to have ever been in jeopardy during his trial on an imperfect indictment, because there is always a presump- tion that the court will set aside the proceedings before judgment. Such a presumption, however, is not founded in fact ; for the courts do not of their own motion scrutinize every indictment on which there has been a verdict of guilty, and refuse judgment for any formal defect. If the accused is to take advantage of these flaws, his counsel must point them out. As a matter of fact, very many prisoners have suffered punishment after conviction on indictments in which sufficiently acute counsel might have made the court recognize more than one technical flaw. The usual rule permits the prosecutor to put the accused so far in jeopardy that, if the jury goes against him, he is practically certain to be punished, unless he has exceptionally sharp-witted counsel, and then, after the jury has acquitted him on the merits, to come forward, and, by taking advantage of a flaw in the indictment that^ he has himself framed, subject the accused to a second trial. In this country, at any rate, a verdict of acquittal on a perfect indictment is held to be in itself a bar to subsequent prosecu- tions. If then the jeopardy of the prisoner is in fact equally great in most cases where the indictment is insufficient, the verdict ought to be equally a bar to another trial. And certainly it will encourage the care- ful conduct of the government's case, and lessen needless harassing of prisoners, if prosecutors are prevented from taking advantage of their own mistakes to begin proceedings all over again. Where can Intangible Property be Taxed? — There is much con- fusion in the authorities as to the extent of legislative power to tax intangible property where the State has not jurisdiction of the owner. I'his may be attributed in part to a frequent misuse of the fiction, Mobilia perso7iam seqtumtur^ immobilia sitiim. Because of the number of States now taxing inheritances, three recent decisions of the New York Court of Appeals are important. It was held, that the legislature has power to impose such a tax on the stock of a domestic corporation owned by a non-resident decedent and bequeathed to a non-resident, the certificates being kept out of the State, but not on bonds of a domestic corporation similarly owned, etc. (/;? re Bronson, 44 N. E. Rep. 707) ; that the bonds of a foreign corporation owned and bequeathed in like manner can be similarly taxed when they are actually deposited within the State {I?i re Whitings Estate^ Ibid. 715) ; and that a non-resident decedent's deposit in a New York trust company is also subject to such taxation. (/;; re Houdayer's Estate, Ibid. 718.) These cases are of general interest, more because of the instructive opinions delivered by Gray and Vann, JJ., than for the actual results under the New York statute. In their opinions in each of the cases these judges, who concur only in holding the stock in the Bronson case taxable, approach the subject from entirely different points of view. The position maintained by Gray, J., that intangible property "can have no locality separate " from its owner, is vigorously assailed by Vann, J. The fiction Mobilia personam sequuntur is really an expression of a rule of law as to the administration of deceased person's estates. Story,