At page 195 Determining jeopardy when first indictment is invalid2 citing casestrial on second indictment after first indictment dismissed on appeal as not charging a crime
- United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965).published(trial on second indictment after first indictment dismissed on appeal as not charging a crime)
- United States v. Wilkins, 348 F.2d 844 (2d Cir. 1965).published(trial on second indictment after first indictment dismissed on appeal as not charging a crime)
Other citing cases
- Love v. Allenbrand, 530 F. Supp. 740 (D. Kan. 1982).published
v.
Commonwealth of Pennsylvania
after making the foregoing statement, delivered the opinion of the court.
The contention that, by the judgment of the Supreme;Court of Pennsylvania, the plaintiff in error has been deprived of a[*195] right secured to. him by the Constitution of the United States must be overruled. He has not been twice placed in jeopardy for the.same offense. Upon the hearing of the case arising out of the first indictment the Supreme Court of Pennsylvania, construing the statute under which the defendant was prosecuted, and looking at the undisputed facts, appearing of record, adjudged that he had'not then committed any criminal offense; •■that he had not failed to pay over- moneys belonging to the county upon any demand, disregard of which subjected him to. criminal liability; consequently, it was held that no valid judgment of conviction could have been rendered against him in the first prosecution for failing to pay over the moneys in question, or any part thereof, on the particular demand shown in the record of that prosecution. These were questions of local and general law which it was the province of the Supreme Court of Pennsylvania to determine conclusively for the parties. They presented no question of a Federal nature.
Assuming, then, that no valid judgment could have been rendered against the accused.upon the first indictment for dig* regarding the demand upon which that indictment, was based, it necessarily follows, as held by the Supreme Court of Pennsylvania, that that' prosecution did not put the accused in jeopardy in respect of the particular offense specified in the last indictment. That offense was never committed until the demand of June 30, 1905 was disregarded. The defense of double jeopardy could not be sustained unless we should hold that the charge against Shoenér in the first indictment could be sustained under the statute. But we cannot so-.adjudge without disregarding altogether the decision of the Supreme Court of Pennsylvania and without holding that an accused .is put in peril by a. prosecution which could not legally result in a conviction for crime. It is an established rule that one is hot put in jeopardy if the indictment under which'he is tried is so radically defective that it would not support a judgment of conviction)' and that a judgment thereon would be arrested, on motion. So where the defense is that the accused was put[*196] in jeópardy for the same offense by his trial under a former indictment, if it appears from the record of that- trial that the accused had not then or previously committed and could not possibly have committed any such crime as the one charged, and therefore that the court was without jurisdiction to have rendered any valid judgment against him—and such is the case now before us—then the accused was not, by such trial, put in jeopardy for the offense specified in the last or new in-» ' dictment.
. As it was thus correctly decided that the accused was -not, by the present indictment, put in jeopardy for the second time for the same offense, we need not go further or consider any question of a Federal nature, and the writ of error must be .dismissed.
It is so ordered.