109 Ill. 565; Walter v. State, 105 Ind. 589; Marshall v. State, 8 Ind. 498; Grisham v. State, 19 Tex. App. 504; Emerson v. State, 43 Ark. 372; Swalley v. People, 2 West. Rep. 391, 116 Ill. 247; Dunn v. State, 70 Ind. 47; Com. v. Dillane, 11 Gray, 67; 1 Bishop, Crim. L. § 1050; Whart. Crim. Pl. & Pr. § 481; Vowells v. Com. 83 Ky. 193; State v. Kelsoe, 11 Mo. App. 91, 76 Mo. 505; Boyer v. State, 16 Ind. 451; Hensley v. State, 107 Ind. 587. § 383. Views of Mr. Bishop.-Mr. Bishop well expresses the prevailing juridical view in so far as evidence of a former conviction is concerned in the following language: "The former record is produced, and for what is provable thereby it is conclusive. Nor can the matter of the record be proved otherwise than by itself. There must be no variance between it and the plea. The identity of the parties and of the offense is established by parol testimony. If the identity alike of the parties and of the offense is conceded, it becomes a question for the court, whether or not there has been a previous conviction or acquittal.” 1 Bishop, Crim. Proc. § 816. This is in entire accord with the ancient common law authorities. 2 Hale, P. C. 241; Rex v. Sheen, 2 Car. & P. 635. § 384. Evidence that Jury were Discharged is Equivalent to an Acquittal.-It is well established that the discharge of a jury in a criminal case without the consent of the defendant, after it has been duly impaneled and sworn, but before verdict, is equivalent to a verdict of acquittal, unless the discharge was ordered in consequence of such necessity as the law regards as imperative, and that in such case the record must show the existence of the necessity which required such discharge, otherwise the defendant will be exonerated from the liability of further answering to the indictment. Hines v. State, 24 Ohio St. 134; Mitchell v. State, 42 Ohio St. 383; Adams v. State, 99 Ind. 244; Powell v. State, 17 Tex. App. 345; Whitten v. State, 61 Miss. 717; Maden v. Emmons, 83 Ind. 331; State v. Connor, 5 Coldw. 311; Stewart v. State, 15 Ohio St. 155; Dobbins v. State, 14 Ohio St. 493; Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Poage v. State, 3 Ohio St. 229; State v. Walker, 26 Ind. 346; Rulo v. State, 19 Ind. 298; Grant v. People, 4 Park. Crim. Rep. 527; McCorkle v. State, 14 Ind. 39. § 385. Miscellaneous Authorities Examined.-Former acquittal, to be available as a defense, must be specially pleaded; the plea is not admissible under the general issue. Rickles v. State, 68 Ala. 538; State v. Morgan, 95 N. C. 641. Where the two trials of the same case were in the same court, it is not essential to interpose such pleas. Foster v. State, 25 Tex. App. 544; Robinson v. State, 21 Tex. App. 160. As to former jeopardy, see Com. v. Fitzpatrick, 1 L. R. A. 451, 121 Pa. 109. The plea of former acquittal is good only where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first. Hilands v. Com. 5 Cent. Rep. 267, 114 Pa. 372; Com. v. Trimmer, 84 Pa. 69. It applies where the transaction is the same and must be established by the same proof. Shubert v. State, 21 Tex. App. 551. An acquittal under an indictment for larceny is a bar to a subsequent indictment alleging ownership in a different person and the taking on a different day. Goode v. State, 70 Ga. 752; People v. Goodwin, 18 Johns. 205; Com. v. Bowden, 9 Mass. 494; Com. v. Purchase, 2 Pick. 525. Nor is such a party put in legal jeopardy if the term of the court, as fixed by law, comes to an end before the trial is finished. State v. Brooks, 3 Humph. 72; Mahala v. State, 10 Yerg. 532, 31 Am. Dec. 591; State v. Battle, 7 Ala. 261; Re Spier, 12 N. C. 491; Wright v. State, 5 Ind. 292, 61 Am. Dec. 90; Cooley, Const. Lim. (4th ed.) 404. Nor if the jury are discharged before verdict, with the consent of the accused, expressed or implied. State v. Slack, 6 Ala. 676. Nor if the verdict is set aside on motion of the accused, nor on writ of error sued out in his behalf. State v. Redman, 17 Iowa, 329. Nor in case the judgment is arrested on his motion. People v. Casborus, 13 Johns. 351. The authorities in support of the doctrine that the effect of granting a new trial on the application of the defendant is the same in a criminal as in a civil case, and opens the whole cause for retrial upon the same issues as on the first, are collected in the case of State v. Behimer, 20 Ohio St. 572. It seems to us, however, more in harmony with the humane maxims of the criminal law and the principles of the constitution, to hold that the finding of the jury acquitting the defendant of the higher offense was an adjudication upon that charge, and that legal effect should be given to it as such, while the new trial should be limited to the lower degree of homicide of which he had been convicted. In the case of Wilson v. State, 24 Conn. 57, after an exhaustive examination of the question, it was held that the conviction of a person for petit larceny committed at the same time a burglary was committed, was not a bar to a subsequent prosecution for the burglary; and in case of Com v. Roby, 12 Pick. 496, it was held that a plea in bar is bad if the offenses charged in the two indictments be perfectly distinct in point of law, however closely they may be connected in point of fact. State v. Martin, 76 Mo. 337. In Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, the prisoners were indicted for murder in the first degree; they were tried on the plea of not guilty, and found guilty by the jury of murder in the second degree. A new trial was granted on their motion, and they were tried a second time and convicted for murder in the first degree. On appeal to the supreme court of Texas, the judgment was reversed. Mr. Justice Lipscomb, who delivered the opinion of the court, after examining the authorities, said: "The result of our investigation is, that both on principle and the authority of adjudged cases, the appellants, after having been acquitted of murder in the first degree, and found guilty of murder in the second degree, could not be legally tried and convicted of murder in the first degree, and that the verdict so finding them cannot stand as the basis of a judgment and execution thereon." In State v. Tweedy, 11 Iowa, 351, the accused was indicted for murder in the second degree, and found guilty of manslaughter. The judgment was reversed on appeal, and the cause remanded for trial again. On the second trial, the court refused to instruct the jury that he had once been acquitted of murder, and could only be tried again for manslaughter. The case went again to the supreme court, and in a very able review of the authorities by Mr. Justice Wright, it was held that the verdict of manslaughter, on the first trial, was an acquittal of murder in the second degree, and that the prisoner could not again be put in jeopardy for that offense. The court said: "When the prisoner moved for a new trial, and appealed to this court, he sought to be relieved of a judgment against him for manslaughter. He had no complaint to make that the jury had not convicted him in the offense of murder. If, however, he might properly be subjected to a second trial for murder, then he is compelled to submit to a verdict which he may deem ever so erroneous, lest by disturbing it, when insisting on his legal rights, he may place himself again in jeopardy. When a jury has once returned a verdict of guilty as to the lower offense, the prisoner should not, in our opinion, be placed in a position of additional hazard, by attempting to be relieved of the erroneous judgment. It is settled, upon authority, that if he obtains a new trial he may be again tried for the offense of which he was convicted. It is a very different thing, however when it is sought to try him for the offense of which he was not convicted, and which was not necessarily in the verdict of guilty." Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154. CHAPTER XLVII. DRUNKENNESS, INFANCY AND COVERTURE AS AN EXCUSE FOR CRIME. § 386. Preliminary Statement. 387. Drunkenness no Excuse for Crime. 388. Presumption of Sanity Obtains. 389. New York Code Provisions. 390. Statement of the General Rule. 393. Non-age as an Excuse for Crime. 395. Evidence of Marital Coercion as an Excuse. §386. Preliminary Statement.-The contention so frequently forced upon the attention of our jurists to the effect that the sodden condition of the accused should operate an extenuation of his fault, is a phenomena in criminal prosecution that should be suppressed. However strong the argument may be in the forum of conscience, in the dispensation of criminal justice it can find no place. It would not do to expose society to a doctrine so pernicious as this. It would never answer to say that a party who, in a drunken freak, comes into your house and murders you whilst you are harmless and inoffensive shall go free and unpunished. Life is too sacred and too dear-too valuable a gift from the Father and source of all life to be taken in this manner. The books contain but one rule upon this question from the earliest time down to the present, and that is, if a person voluntarily becomes drunk he shall be accountable for what he does. while in that condition. It does not avail the accused that he did the unlawful act in the spirit of mere drunken bravado. Human life cannot be so cheapened as to permit voluntary drunkenness to shield an accused person who, in the commission of an unlawful act, unintentionally takes another's life. Surber v. State, 99 Ind. 71. This sufficient reason locates the law governing the subject. $387. Drunkenness no Excuse for Crime.-Modern criminal |