jeopardy

the line between civil, remedial actions brought primarily to protect the government from financial loss and actions intended to authorize criminal punishment to vindicate public justice. Only the latter subject the defendant to 'jeopardy' within the constitutional meaning.

Peril; danger. See Baldw. (U. S.) 93. The usual technical use of the term is in connection with the rule of criminal law, that no person shall be twice put in jeopardy for the same offense. Const. U. S. art. 5, Amend. A person is "in jeopardy," within this rule, when a trial jury is impanelled and sworn to try his case (83 Ind. 331; 18 N. Y. 128; 105 Pa. St. 1) upon issue joined (111 Ind. 47) by plea to a valid indictment (105 Mass. 53; 5 Md. 82) in a court of competent jurisdiction (7 Mich. 162; 48 N. J. Law, 371), and the jury has been charged with his deliverance (23 Pa. St. 12; 2 Kelly [Ga.] 60). Where the practice of charging the jury with the deliverance of the prisoner at the outset does not obtain, jeopardy attaches when the jury is sworn. There are some holdings that jeopardy does not attach till after verdict. 5 Litt. (Ky.) 137; 1 Walk. (Miss.) 134.

The situation of a prisoner when a trial jury is sworn and impanelled to try his case upon a valid indictment, and such Jury has been charged with his deliverance. State V. Mc Kee, 1 Bail. (S. C.) 655, 21 Am. Dec. 499; Weinzorpflin v. State, 7 Blackf. (Ind.) 191; Mc Fadden v. Com., 23 Pa.. 12, 62 Am. Dec. 308. It is the peril in which a prisoner is put when he is regularly charged with a crime before a tribunal properly organized and competent to try him. Com. v. Fitzpatrick, 121 Pa. 109, 15 Atl. 466, 1 L, R. A. 451, 6 Am. St. Rep. 757. This is the sense in which the term is used in the United States constitution: “no person... shall be subject for the same offence to be twice put in jeopardy of life or limb,” U. S. Const, art. V. Amend., and in the statutes or constitutions of most if not all of the states. As commonly used it must be distinguished from former acquittal and former conviction. Obviously it Includes the rules governed by those two terms, but there may be a former jeopardy without a previous acquittal or conviction, and this was intended by the court in Com. V. Fitzpatrick, 121 Pa. 109, 15 Atl. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757, where it was said: “The plea of former jeopardy stands on narrower, more technical, and less substantial grounds. It alleges only that there might have been a conviction or acquittal if the judge trying the case had not made a mistake of law, which prevented a verdict.” It might be said that former jeopardy is the genus. See 10 Va. L. Reg. 410, and note. This provision in the constitution of the United States binds only the United States; Or. Jj. 8 981. At one time it was not uniformly so considered, and It was held contra, Com. V. Purchase, 2 Pick. (Mass.) 521, 13 Am. Dec. 452; People v. Goodwin, 18 Johns. (N. Y.) 187, 9 Am. Dec. 203; State v. Moor, Walker (Miss.) 134, 12 Am. Dec. 541. This was the same fluctuation of judicial opinion as to the effect of the early constitutional amendments which affected other questions. See Eminent Domain. In this country this rule depends in most cases on constitutional provisions. In England it is said to be one of the universal maxims of the common law; 4 Bla. Com. 335; and Stephen in repeating the expression adds in a note that although Blackstone uses the term “jeopardy of his life,” it is not confined to capital offences, and extends to misdemeanors; 4 Steph. Com. 384; 3 B. & C. 502. In a leading case where the question was considered whether the rule applied when a jury had been discharged for want of agreement it was held that the court had authority in its discretion to discharge the jury in such a case, and that such action did not operate as an acquittal. This is also the prevailing opinion in this country. Sec infra. In the English case referred to, it was said by Cockburn, C. J., that in considering the question of the right to discharge a jury in such case they were not dealing with one of those principles which lie at the foundation of the law, but with a matter of practice, which has fluctuated at various times, and “even at the present day may perhaps be considered as not finally settled L. R. 1 Q. B. 289. This would seem to be a more reasonable construction of the language of Lord Cockburn than that sometimes put upon it. See 1 Blsh. N. Cr. L. § 982. That which he characterized as a mere matter of practice was not the existence of the doctrine of jeopardy, but whether it was applicable. The constitutional i)rovl.sion, which refers to “life or limb,” properly interpreted, extends only to treason and felonies, but it has usually been extended to misdemeanors; 1 Bish. Cr. L. § 990; Mc Cauley v. State, 26 Ala. 135; but not to proceedings for the recovery of penalties, nor to applications for sureties of the peace; 1 Bish. Cr. L. § 990. A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon Indictment or Information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; Cooley, Const. Lim., 4th ed. 404; approved in O’Brian v. Com., 9 Bush (Ky.) 333, 15 Am. Rep. 715; Ex parte Fenton, 77 Cal. 183, 19 Pac, 267. The discharge of a competent jury before rendering verdict without defendant’s consent, express or Implied, or without sufficient cause, operates as an acquittal; Ex parte V. Hart, 149 Mass. 7, 20 N. B. 810; Com. v. Pltzpatxlck, 121 Pa. 109, 15 Atl. 466, 1 L. R. A. 451, 6 Am. St Rep. 757; State v. Kinghom, 56 Wash. 181, 105 Pac. 234, 27 L. R. A. (N. S.) 136; People v. Taylor, 117 Mich. 583, 76 N. W. 158; Jones v. State, 97 Ala. 77, 12 South. 274, 38 Am. St Rep. 150; State v. Frlsbie, 8 Okl. Cr. 406, 127 Pac. 1091. The serious Illness or Insanity of the defendant, the illness. Insanity, or death of the Judge or a juror, engaged In the trial, the death of a juror’s mother, misconduct of a juror, and upon judicial inquiry a finding that a juror Is prejudiced, have been held to create a sufliciont cause for the withdrawal of a juror and a postponement; State v. Richardson, 47 S. C. 16(i, 25 S. E. 220, 35

Hazard; danger; periL

Danger; hazard; peril. inal action incurs when a valid {indictment has been found, and a petit jury has been impaneled and sworn to try the case and give a verdict.

peril, danger. This is the meaning attached to this ‘issued, taken by virtue of such writ, ‘are called issues. 3 Bl. Com. 280; Chit. Cr. Law, 351.