In the dissenting opinion filed by Justices Holmes, White and McKenna, in Kepner v. United States,63 it is argued that it is within the constitutional power of Congress to provide for a writ of error on behalf of the government in criminal trials, whereby errors of law committed in the trial court may be corrected, and, when proper, a new trial of the accused ordered. Though the verdict or judgment may have been in his favor upon the first trial, the accused, it is declared, is not, by the new trial, subjected to a second jeopardy. The jeopardy, it is argued, is one continuing jeopardy, from the beginning to the end of the cause. The principle of the immunity from second jeopardy in its origin, it is declared, was that a trial in a new and independent case could not be had where a man had already been once tried; not that he may not be tried twice in the same case. In fact, the argument continues, he may be tried a second time where the jury disagrees, or the verdict is set aside on the prisoner's bill of errors, or, indeed, he may be tried on a new indictment if the judgment on the first is arrested upon motion.64 defendant having no reason for contesting them, the decisions will be based upon ex parte argument, with all the evils generally recognized as thereupon attending.63
Despite this argument, the weight of authorities, both state and federal, is overwhelming that, as stated earlier in this chapter, a verdict or judgment in a lower court of competent jurisdiction is final and conclusive as to the defendant. Provision has, however, been made in some of the States, and similar action has recently been taken by Congress, to provide for a review at the instance of the Government in a superior court of questions of law, with, however, the proviso that a verdict in favor of the defendant shall not be set aside. The objection, however, to such a proceeding is not only that it raises in the superior court merely moot questions, but that, irrespective of whether the superior courts will feel themselves bound or even constitutionally qualified to pass upon points with reference to which they are not able to issue any appropriate orders, there is the objection that the
63 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114. 64 Ex parte Lange, 18 Wall. 163; 21 L. ed. 872.
The federal act referred to is that of March 2, 1909, which provides as follows: "That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded. From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. The writ of error in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted and shall have precedence over all other cases. Pending the prosecution and determination of the writ of error in the foregoing instances, the defendant shall be admitted to bail on his own recognizance: Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant." 66