KEATOR fl. ST. JOHN
as to the !levere nature of his inj'uries, and their permanent character. And, thirdly, if the proof was the same at the two trials, it only ShOIVE the widely different conclusions that men of equal intelligence and equal opportunities will draw from the same state of facts. I should feel very much like deferring to my learned· Brother HALLETI' on a question of law, but when we go outside of the law, and put ourselves in the place of a jury. to: pasS upon the facts, in this kind of a case, I think a good, intelligent Jury knows better how to do that than either or both of us. And if this case, on the evidence I heard at the last trial, had been sulr mitted to: J HALLETT and myself, sitting as a jury, and he had thought:12,5QO an excessive verdict, there would have been a hung jury.
(CU'cuit.Oourt, D. Minnesota. July 2, 1soo.)
On the plea of ru adjudicata in an action by a principal againllt btl agll1lt for the purchase ot land, to recover 'IS,OOO alleged to have been received by the'agenS of the tnoneyllpaid by. plaintiffs to hiJ vendor, it appeared that in a former by the principallAlt8inllt the agent for fraudulent representaUonll as to tbe value 'Of the lana,. a judgment was recoveJ'ed againsttlie ageut, but It did not appear thal any issue Was raised as to the IlS,QOO by the agent, or that at tbat thne plaintilflhad any lmoW1edi8 of it. Held, that the former suit was not a tQ ·secon4. ,.
ADJoJ>ICATJ.-mBNTITT O. POIJlIT AT ISSUB.
Fla.ndrau,. Squirel Outcheon and Searles for plaintiffs. Olnpp McCartney and O. D. O'Brimi for defenda.nt.
Justice. This is an action brought by Keator against St. John on the ground that, while St. John was his agent forthe purpose of Pllrchasing pine lands, he (St. John) received some $18 t OOO from the other side, which he converted to his own use, and which was paid in fact by the present plaintiff in the case. If that was so, it undoubtedly wasagoQd found!ttion for an action. and as the caSe is presented on this .motioQ that much is .conceded. But St.. John presents to the court as a ·defense a former trial and a judgment in the state court, which is alleged to for the saine subject;.:matter between the same parties, in which a judg. ment was rendered against him for $5,000, which stands unreversed. and which,he claims, is a bar to the suit now before us. If that 80, iftbat,were for the same cause of action, and between the same par. ties, it would be a bar. The defendant states that at the introduction of the record q(the former suit he asked the court to tell the jury, DOttbat it was a bar, but that they must find a verdict for the defendant ground. ,. is no assignment of that as an error, because the qQuTt was to say to thejury: "These are the same parties, and facta , . ' .', .-,. ... >'state court are the same facts proved in thiscO\ltt. .the ,'" ., . .' . ,
That waJ3,aimatter.it was, his duty to;leave to thejul'yt '<He had a right to there is no error in that :rtuling. But there were instructions askied upon the parf"of the defendant with, regard to that matter, which,i11 it was a good,dEifense, ought probably to havEi' been given; and the. ,question is whether" as weilee, it now, as it i13,with,the record of cases before us, defense as thErcGu:rt-ought to have instructed ilihe jury that he could arid ought· to have ,relied, upon as a defense'against the present case: The dootrine'on that silbj'ect has undergones.tnne' modification, and has:aIways been liable to ,some divergence ofopinion: in different 'courts at different times. 'Perhaps' the doctrine acted on by the supreme court of the United States, is best stated in the case of OromweU v. Sac Co., 94 U. S. 351, day It had been held in the case of which was cited here the Aurora v. West, 7 Wall. 82, that not only would what was actually decided in the first suit be a bar to a second suit for the same cause of ac,might-haYebeendecideilJ. under that issue was a tion, but that bar to any further prosecution for the same similar cause of action. In Cromwell v. Sac held thatjthe v. West was a dictum not necessary to,the case; thatto be a bar to a suit pa.ve:peel).".'aciually tri¢d anQ d,ecided, or it .that is, it as An the,prst c()l,1rt' ,or jury, or it lUuat ,ibferen'l0,from .the, state of the pleadings that the judgment trial, think that is the solid foundation on which the doctrine of res adj'u'dicata rests. Applying these principles to the present case, it is very true there is a liberal statement in the first action against Mr. St.John about his 'committingtrati'dS: on the ,plliintiiff, and' a:bout the fraud 'concerIling the purtbat'und'er the first decchase of this same land'jan.d it is the, present of the having received $18,POO frilm the other agent of theplaiiltiff, might have nut"it does not'appear that it was proved. T do notundetstand that the'exact truth as it:appeal'ed on this as the agent trUll, ootifessed by Mr; St.John hhne&1f, that while present plaintiff iii the purcM'lie'Of the land from Gillespiehe got for 818,000 ot money that Gillespie got 'from theplaintifi, was, so' fliirly set' forth that the plaintiff :was the fact; :thiit it was an issUe hi' that case. But Mter that case' Was' decided the' present plaintiffs beca,ine aware of that fact. , They werefible to he, took which were paid in the bank, so that· ott the secoIidttial there was this decided issue about the $18;000 re<::etve'd by St. John.' Withou1elaborat1ng'the case' 'any further, Weare of theopiQion that the jUdge of the mTcuit cQurt was right'inrefusing td,hold that wiis a barto tW second :aotion. . The frauds were'different, anyway.' .. The6rst fraud for iWhiq'h'it recovery wag sought waHorfaIse representatfons,lXlade to 'the p1aintiiibySt.Johnas. to the value'bf'the Ytlti who live in the country amOng p1.tielandsknow 'that their vlit'tie depend;s updDtIte'quantiiY '6fpibetinilJer 'a(ur:thanaa 'ma't-
EX P;\.RTE ULRICH·
ter of calculation and knowledge, to be obtained by inspection. Mr. St. John professed to have that knowledge, and made false statements about it, for which the jury held him liable in the sum of $5,000. That was totally different from the $18,000 which he actually received as his reward from Gillespie for helpingto.sell this land. I am of the opinion that the motion for a new trial should be denied. Ordered accordingl!y.
(D(.strict Oourt, W. D; MI880Uri,. W. D. June 28, 18OO.)
1. CoNSTiTUTIONAL LA.w-DUE PROCE8S OIr LA.w-FORllIER JEO}'ARD)'.
Since'it is a priuciple of the co;mmon law that no one Ilhall be twice placed in jeopardy for the same offense, the trial and commitment of one who has already 1:Ieen tried. and acquitted of the same offense Is depriving him of his liberty "with· out due process of law," within the meaning of Const. U. S" A,mend. 14Where, after a person has pleaded not guilty, and been put on trial for a felony, and evidence has been introduced by the state, the judge adjourns the case to take up the trial of another set for that day, and on the adjournment day, on the ground that ;be is unwell, discharges the jury without the prisoner's consent, the discharge is equivalent to an acquittal; and he cannot De again tried for the same offense.
OIr JURy-FORMBR ACQUITTAL.
CQnst. Mo. § 23 of the bill of rights, prpviding that "no pers,on, af1<llrhaving been once acquitted by a jury, "shall again be put in jeopardy, but, if the jury "fall to rendel'a'verdlct, the court before which the trial is had may, in its discretion, disoharge tqejury, and commit the prisoner for trial at the .next term of the court," etc., does not give the court a right to c.ommit aprisoner for. a second trial after dlscharging the jury without legal cause. ' " Const. U. S. Amend. 14, providing that no "state" shall deprive any person of life, liberty, or property without due process of law, applies equally to the act of a state judge. .
At Chambers. On habeas corpus. Oritten,den, Stile8, & Gilk88on, fot' petitioner. A. If.. Strother, for the State.
PHILIPS, ,J. This application for writ of habta8 corpus grows, tially,<ont of the following state of facts: The petitioner was indicted by the grandjury in the state criminal court of J acksoll county, Mo., for the crime 0f bigamy. He was arraigned, and entered a plea: of not guilty. The case coming on for trial on the 21st day of April last past, a jury was duly impaneled and sworn to try the case. The opening statement of counsel was made to the jury, and the state introduced and examined one .witness for the prosecution on that day. The trial of the causew:as then adjourned to the usual hour of the following day. On the 22d, of .April the, trial was resumed ill, the forenoon, and a ber of witnesses examined on the part of the state, when certain record evidebee was' offered byt:he· state, which; would have about concluded the evidenee on its part. Discussion arose as to the admissibility of this .record. evidence about the noon hour., On suggestion by counsel