Reynolds vs. The State.

for caprice or favour; under its exercise the boldest may tremble and the free be made slaves. It is better therefore to act upon a fixed rule, even if it shonld now and then enable the guilty to escape, than to act without a rule, to the terror and danger of the innocent."

"The solicitor has the right to enter a nolle prosequi, at any time before the jury is charged, but not after. Chitty, in his Criminal Law, 478, says, a nolle prosequi may be entered during all the stages of pleading to the indictment. As to the power of entering it after the issue, he is silent, and I take it therefore that, in his opinion, it could not be done. But Gulden's case, (2 McC. 524,) as well as sound reason, will carry this power up to the time when the jury are charged; for at this moment, and not before, commences the jeopardy of life to the prisoner. The maxim of the common law, that no man shall twice be put in jeopardy for his life for the same offence, is the foundation of the rule, which prevents the arrest of the trial after this stage, except for the causes already noticed."

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"But say that this question was a new one, and that it must be settled by general principles, could we fail to come to the same conclusion? Starting with the common law maxim before us, no man shall be twice put in jeopardy of his life for the same offence," we ask, what is meant by jeopardy of his life? It is where one is put upon his trial upon a valid indictment for a capital offence. It may result in his condemnation, and hence he is in jeopardy. To give every opportunity to innocence to escape, the law humanely affords to the prisoner the arbitrary choice of his jurors; he may challenge twenty of them peremptorily. After he has selected his jury, and they are charged with his case, can the solicitor, from a defect of evidence, or an objection to a juryman, say, I will not now proceed with the trial, I will enter a nolle prosequi, and at another term give out a second indictment, and be prepared then with more evidence, and have a jury better suited to my wishes? This would indeed be literally twice putting the prisoner's life in jeopardy for the same offence. Carry the matter a little further, and, as was well argued by the learned counsel for the prisoner, allow this right to the solicitor, and the prosecutor is prepared, by the second trial, to meet all the points of the prisoner's defence, and even to shape his own testimony to conviction. This would be making the court hold out every inducement to perjury, and bornation of perjury, and convert jury trials into engines to

Reynolds vs. The State.

oppress and destroy at the pleasure of the prosecutor. Such is not, cannot, and never will be the law."

"It is said, however, that in this case, the solicitor having discovered the bias of the foreman's mind, had the right to arrest the trial, and to claim that the court should discharge the jury and remand the prisoner. The solicitor acted from motives which do honour to him, and no man who knows him will believe that his course was adopted from any other promptings, than those of a high sense of duty to the State. But no matter how laudable may have been his motives, I apprehend it would be utterly unsafe, at such a moment, to allow such an objection to prevail. This court has over and over again said, that in no case in the sessions will they grant a new trial, when the verdict is for the defendant. It is the extension of the principle, that no man shall be twice put in jeopardy of his life, so far that no man shall twice be tried for the same offence, when one jury has passed upon and declared his innocence. It is giving to the prisoner, the benefit not only of the prejudices of his jurors, but even of the errors of the judge; where would be this protection if the solicitor could say, I find the jury are with you and therefore will enter a nolle prosequi and give out and try you on a second indictment? It would be, in effect, allowing to the solicitor a power which this court denies that itself possesses, of subjecting the prisoner to a new trial as often as it might be necessary to obtain a verdict of guilty.”

"But suppose the prisoner had been tried and found guilty, and was moving for a new trial on the ground that one of the jury believed that, he who sheddeth man's blood by man shall his blood be shed,' and that this belief caused his conviction, the ground would avail him nothing. He would be answered, you had your twenty challenges, and if you had cause, you might, on cause shown, have challenged every man on the panel. You should have objected as they came to the book to be sworn, and before they were sworn; your objection, if of any value, is now too late. Ought the State to be more favoured than the prisoner? Certainly not. If the prisoner had the prejudice of a single juryman in his favour, and the State permitted him to be sworn, and the jury were charged with the case, it was the protection perhaps of error, but certainly a legal protection. The prisoner's life was in jeopardy, and objections to the jury, or any of them, could no longer be made.

"The solicitor having entered a nolle prosequi after the jury

Reynolds vs. The State.

were charged, and they being discharged without any lawful cause upon which the prisoner's case can be remanded for trial a second time, it follows that he is acquitted."

"The motion for discharge is therefore granted, and the prisoner forever acquitted of the said offence."

If then these courts have rightly apprehended the law, and they are abundantly fortified and sustained in their opinions, it is clear that Reynolds, the defendant, must be discharged upon general principles, and without the aid of our own statute, and that too were he even ten times more guilty than he is And, instead of laying down rules for the guidance of courts, I have preferred, on this occasion, to rely upon the authority of those sages of the law, Haywood and Hall, Tilghman, Taylor and O'Neall, who, living or dead, will command attention and confidence. It will not be suspected or insinuated, that these men were either mad or actuated by any sickly sentimentality for human suffering. As faithful and vigilant sentinels set to guard the citadel of civil liberty, they have esteemed it their duty to sound the alarm whenever the outposts of this noble fabric were assailed; and if they have expressed themselves warmly, it was not from temper, much less from any more ignoble passion, but because they felt deeply. Their bosoms kindled with zeal in the same cause which animated their Saxon ancestors. They are but consummating the work, giving the finishing blow to the struggle for human rights, commenced more than six centuries ago, by the sturdy old barons at Runnymede. And the issue cannot be doubtful nor much longer delayed, between privilege and power, the people and their rulers. And when the victory is fully won, then it will be seen and acknowledged, that Magna Charta, the Petition of Right, the Habeas Corpus, the Bill of Rights, and Act of Settlement, are the original foundation, basis and embodiment of the liberty of the world.

And it is an error to suppose that these old statutes are now dead and forgotten. Such was not the estimate put upon these glorious monuments of the rights of man, by the Sullivans, the Adamses, the Duanes, the Jays, the Livingstons, the Randolphs, the Henrys, the Harrisons, the Pendletons, the Washingtons, the Gadsdens, the Middletons, and Rutledges, of 1774.. These immortal men who sat in the first congress of that year revered those charters as the true and only source of those great principles in which all true governments are founded. Their session continued from the 5th of September, 1774, to the 26th day of

Reynolds us. The State.

October; and to the Journal published by their order and verified by the autograph of their secretary, is prefixed in the title page, a medallion, having for its pedestal the Magna Charta of England, on which is raised the column and cap of liberty, supported by the twelve colonies assembled by their delegates, declaring that hac nitimur, hanc tuemur, on this we rely," "this we will defend.""

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Thirteen years afterwards, in 1787, six of these men were in the convention which framed the constitution. They exerted an unbounded influence in all the new States of the Union, and it is not strange therefore, that the common law should have been made the model of our Federal Compact-the pattern of all our early institutions. It was for the protection of the human rights guarantied by the common law and these old statutes of England, and for their violation, that the war of the Revolution, was undertaken, as the Declaration of Independence shows; and by the ordinance of 1787 they were declared to be the basis of all laws, constitutions and governments, which forever thereafter shall be framed in the territory north-west of the Ohio. 1 Laws U. S. 479.

It is not then unbecoming the gravity of those who minister at the altar in the Temples of Justice, appreciating as they do the blessings bequeathed to us by our venerated ancestors, to exhibit more than ordinary earnestness whenever the essential doctrines of the common law are threatened. What a vast expenditure of blood and treasure did it cost to secure to us and to posterity, religious toleration; freedom of speech and of the press; the right of petition; to keep and bear arms; to be exempt in our persons, houses, papers and effects from unreasonable searches and seizures; from being twice put in jeopardy of life or limb for the same offence; from being deprived of life, liberty or property, without due course of law; from having our private property taken even for public use,, without just compensation; the enjoy ment of the right to a speedy and public trial, by an impartial jury of our neighbours; to be informed of the nature of the accusations, to be confronted with witnesses, to have compulsory process for obtaining our testimony, and to have the assistance of counsel for our defence. Would that court discharge its obligations faithfully or satisfactorily, which would submit to see these invaluable privileges violated or infringed or even to repel with cold indifference any attempt to undermine them ?—

Robbins and another vs. Mount, adni'r. and others.

Far be it from us to intimate that the Court below intended to oppress the prisoner. That Judge is above reproach. His reputation for probity and patriotism, is cheerfully accorded by the whole State; and sitting as an appellate judge, he would be the first to repudiate his own decision if convinced of its error. Constituted as our courts are, the wonder is, in every generous mind, not that so many, but that so few of the many thousand adjudications made by the circuit judges, should be complained of. The general acquiescence and contentment of clients and counsel, reflect the highest credit and compliment on that bench.

The first jury then, in 1841, in the language of the common law having been charged with this cause, or it being submitted to the jury in terms of our Code, and a nolle prosequi having been entered by the solicitor on the bill of indictment, without the consent of the defendant, and the record disclosing no necessity for this discharge, we are unanimously of the opinion, that the defendant could not be put on his trial a second time for the same offence. And that in all such cases, discharge and acquittal are synonymous terms.

Judgment reversed.

No. 9. NATHANIEL C. ROBBINS and GEORGE FIELD, plaintiffs in error, vs. WILLIAM MOUNT, administrator of JOHN W. BROWN, deceased, BENJAMIN CONE, JAMES P. HOLMES, and JOHN W. SUT LIVE, defendants in error.

[1.] A court of equity will not relieve against a judgment at law, unless the defendant in the judgment can show he had a good defence of which he was entirely igno

rant while the suit at law was pending against him; or unless he was prevented from availing himself of his defence, by fraud, or accident, or the act of the adverse party, unmixed with negligence, or fault on his part.

Bill for discovery, relief, and injunction to stay a judgment and execution at law, and demurrer. From Early Superior Court. Demurrer heard and overruled. Judge WARREN presiding. April Term, 1847.