What constitutes "jeopardy" is, in accordance with the general principle of constitutional construction, to be determined by the usage of the word and the custom of the common law at the time the Constitution was adopted. By the common law not only was a second punishment for the same offense prohibited, but a second trial forbidden whether or not the accused had suffered punishment, or had been acquitted or convicted.50
It is not necessary, in order that prior jeopardy may be pleaded in bar, that there should have been a former trial and verdict by a jury. This is not the rule uniformly stated, but as declared by the Supreme Court in Kepner v. United States,51 "the weight of authority, as well as decisions of this court, have sanctioned the rule that a person has been in jeopardy when he is regularly charged with a crime before a tribunal properly organized and competent to try him: certainly so after acquittal." 52 "Undoubtedly," the court add, "in those jurisdiction where a trial of one accused of crime can only be by a jury, and a verdict of acquittal or conviction must be by a jury, no legal jeopardy can attach until a jury has been called and charged with the deliverance of the accused. But protection being against a second trial for the same offense, it is obvious that where one has been tried before a competent tribunal having jurisdiction he has been put in jeopardy as much as he could have been in those tribunals where a jury is alone competent to convict or acquit." 53
47 Vol. I, p. 452. Quoted with approval in Grafton v. United States.
4812 Pick. (Mass.) 503.
49 Citing Starkie, Crim. PI, 2d ed. 322.
50 Ex parte Lange, 18 Wall. 163; 21 L. ed. 872.
51 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114.
52 Citing Coleman v. Tenn., 97 U. S. 509; 24 L. ed. 1118.
Where, upon a former trial, the jury has reported disagreement and, it appearing reasonably certain that an agreement cannot be obtained, the jury has been discharged by the court, a plea of former jeopardy will not be held good.54
In Hotema v. United States55 it was held that a plea of former jeopardy to an indictment for murder could not be based upon the fact that, upon the trial of two consolidated indictments for two other murders committed by the defendant on the same day as the one charged in the indictment in question, he was found not guilty because insane, which defense was again set up.
54 In United States v. Perez (9 Wh. 579; 6 L. ed. 165), the court say: "We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject in the American courts; but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial."
In Keerl v. Montana (213 U. S. 135; 29 Sup. Ct. Rep. 469; 53 L. ed. 734), the court, quoting the above, say: "This is the settled law of the federal courts since that time." Citing Logan v United States, 144 U. S. 263; 12 Sup. Ct. Rep. 617; 36 L. ed. 429; Thompson v. United States, 155 U. S. 271; 15 Sup. Ct. Rep. 73; 39 L. ed. 146; Dreyer v. Illinois, 187 U. S. 71; 23 Sup. Ct. Rep 28; 47 L. ed. 79.
55 186 U. S. 413; 22 Sup. Ct. Rep. 895; 46 L. ed. 1225.