Ohio State Reports Volume 42

Ohio State Reports Volume 42

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1885 edition. Excerpt: ... at the time of such discharge, and. still is, a statute (Rev. Stats. 7303) which provides: " If it appear, at any time-before verdict, that a mistake has been made in charging the proper offense in the indictment, the jury may be discharged, without prejudice to the prosecution, and the accused, if there is good cause to detain him, may be recognized to appear at the next term of the court, or, in default thereof, committed to jail; and in such case the court may recognize the witnesses for the state to appear at the same time and testify." Obviously, in our opinion, this provision should be construed as applying to cases in which there could be no conviction on the indictment on account of variance between the proof and allegations. In such ease, where the evidence discloses the fact that the prisoner has committed a crime of which he cannot be convicted on that indictment, the presiding judge is made a committing magistrate, so as to prevent a failure of justice, through the escape of one who ought to be punished. Suppose the second grand jury had returned an indictment for an assault only. Could Mitchell have been lawfully convicted on such an indictment, notwithstanding he might have been convicted of the same assault on the first trial? l submit, the statute cannot receive the construction contended for by the state; but aside from that, it is the duty of the court to so construe the provision that it will Mitchell v. State. be valid. _It is clear that, construed as contended for by the state, the provision would be plainly unconstitutional. We must look to the condition of the law as it existed in 1802, when it was ordained that no person "shall be twice put in jeopardy for the same ofiense," which...show more

Product details

  • Paperback | 278 pages
  • 189 x 246 x 15mm | 499g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236814363
  • 9781236814364