State v. Knouse

Day, J. 1. Criminal law; failure to file procedendo. I. It is claimed that the proceedings in the court below were coram non.judice, and are void; that, in the absence of a procedendo from the supreme court, the district court was without jurisdiction in the premises, and that by submitting to trial, without objection, the defendant could not [367] confer jurisdiction. The claim of the defendant, in our opinion, is without legal support. The former judgment was, in fact, reversed, as this record disclosed, at the June term, 1870, of the supreme court. The defendant was placed upon trial at the September term, 1870, of the district court. Without interposing any objection, or suggesting any defect in the record, he submitted the cause to the court for adjudication. If the trial had resulted in an acquittal, would any one contend that he could not plead the judgment in bar of another trial for the same offense ? Yet, if appellant’s position be correct, he could not so plead -it, for legal jeopardy could not arise from being placed upon trial in a court having no jurisdiction in the premises. It is conceded that consent cannot confer jurisdiction. .But this doctrine is applicable only to jurisdiction over the subject-matter. Nothing is of more frequent occurrence than for consent to confer jurisdiction over the parties. The defendant has had all the benefits of the judgment reversing the former trial, and has secured a re-trial in the court in which the charge against him was properly pending. He cannot now be heard to question the determination of that court for the cause here alleged. 2_^¡06 in jeopardy. II. It is claimed that the former conviction for murder in the second degree having' been reversed, the defendant cannot again be put upon trial for that offense. Upon this point, there is not an entire uniformity of decision, but it is believed that the current of authority is opposed to appellant’s view. It has been the uniform practice in this State, sanctioned by section 1925 of the Revision, 'upon the reversal of a judgment of conviction, to remand the cause for a new trial, and we are not aware that the right to do so has ever been seriously questioned. Jeopardy is not considered as having attached if the defendant is erroneously convicted and obtains a reversal of the -judgment. See authorities cited in State v. Redman, 17 Iowa, 329. [368] In State v. Tweedy, 11 id. 350, it is said to be settled upon authority that if one convicted obtains a new trial, he may be again tried for the offense of which he was convicted. See also Sutcliffe v. The State, 18 Ohio, 469-478; People v. Olewell, 28 Cal. 456. "We discover no error in the action of the district court. Affirmed.