It is established that in criminal cases, the State has no right of appeal where the accused may fairly be said to have been placed in jeopardy. This, the doctrine of the common law, has been repeatedly accepted by the United States Supreme Court.56 A verdict or a judgment in a trial court in favor of the accused is, therefore, as to him, final and conclusive. But acquittal before a court without jurisdiction is absolutely void and, therefore, no bar to a subsequent indictment and trial before a court having jurisdiction. The fact that an indictment was fatally defective does not render the judgment void, but voidable only. This the government could not set up on writ of error, and, of couse, the defendant would not. The judgment could not be collaterally attacked. Thus in United States v. Ball57 the court say: "As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense."58
Where, upon conviction, the defendant has taken an appeal, and a new trial has been ordered, he may be found guilty of an offense of a higher degree than that originally found against him. Thus a verdict of manslaughter having been rendered, and appeal taken, and a new trial awarded, a verdict of murder may be returned. This is the doctrine definitely declared in Trono v. United States,59 the court, after a review of authorities, saying: "We do not agree to the view that the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment, or of any lesser degree thereof. No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it, and to ask for its reversal, he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense contained in the judgment which he has himself procured to be reversed."
56 See United States v. Sanges. 144 U. S. 310; 12 Sup. Ct. Rep. 609; 36 L. ed. 445, and authorities there cited.
57 163 U. S 662; 16 Sup. Ct. Rep. 1192; 41 L. ed. 300.
58 In Kepner v. United States (195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114), this language is quoted and approved, the court adding: "It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment. The protection is not . . . against the peril of second punishment, but against being tried for the same offense."
As to the right of the defendant thus, by seeking a new trial, to waive the constitutional protection affored him by the first judgment the court admit that by seeking a new trial the accused may and does waive his right to the plea of former jeopardy as to the crime of which he has been convicted.60 The only question is as to the extent of that waiver, and, the court say, it "seems much more rational and in better accord with the proper administration of the criminal law to hold that, by appealing, the accused waives the right to thereafter plead once in jeopardy, when he has obtained a reversal of the judgment, even as to that part of it which acquitted him of the higher while convicting him of the lower offense." The doctrine of Hopt v. Utah61 does not, therefore, govern.62
59 199 U. S. 521; 26 Sup. Ct. Rep. 121; 50 L. ed. 292.
60 Citing United States v. Ball, 163 U. S. 662; 16 Sup. Ct. Rep. 1192; 41 L. ed 300.
61 110 U. S. 574; 4 Sup. Ct. Rep. 202; 28 L. ed. 262.
62 It is to be observed in the Trono case four justices dissented, and Justice Holmes is recorded only as concurring in the result.