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The State v. Van Horton.

he in the other. Therefore, it seems to us that the true inquiry is, whether, by the appeal, there was new jeopardy or a mere continuation of the old.

tional law: twice in jeopardy.

We have seen that the defendants' case falls within the language of the Constitution. Why is it not within its 2. constitu- spirit and meaning? If not, then there can be no constitutional acquittal, so long as the State, by its legislation, may devise means to prosecute, try and retry, one charged with crime. For it could be as well and consistently provided that the State could appeal from a verdict of not guilty in the District Court, and upon a reversal here, again put the defendant upon his trial. In principle, and looking at the spirit of the Constitution, the cases are parallel. And aware of this rule the legislature, while giving to the State the right of appeal to this court (section 4905), expressly provides that we cannot reverse the judgment, the decision being merely obligatory upon the District Court as the correct exposition of the law. The propriety of such a provision is manifest enough when we reflect upon the necessity of submitting mooted questions in some form to the final adjudication of a tribunal having a common jurisdiction over the whole State, for we, of course, thereby tend to insure uniformity in the judicial administration of the law. And, in our opinion, the legislature cannot do more than this, where there has been an acquittal by the justice. So much of the statute, therefore, as undertakes to give to the State the right of appeal, and to retry the party charged after acquittal (we do not stop to explain what would or would not amount to an acquittal, for the fact is conceded in the case before us), must in our opinion be held invalid. Mr. Bishop (1 Cr. Law, section 664) says, "that, in England, writs of error, the practical object of which is generally to bring the matter under the review of a higher tribunal,

The State v. Van Horton.

seem to be allowable to the crown in criminal cases; but the courts of some of our States refuse them, and also refuse the right of appeal to the State, except where such proceedings are expressly allowed by statute, as in some States they are." And then in explanation of this it is further said that "a legislative provision for the rehearing of a criminal cause cannot be interpreted to violate the constitutional rule under consideration (that which protects a party from being put twice in jeopardy), whatever the words in which the provision is expressed. When, therefore, the defendant has been once in jeopardy, the jeopardy cannot be repeated without his consent, whatever statute may exist upon the subject. And so the writ of error, or the like, allowed the State, can authorize the State to procure the reversal of erroneous proceedings and proceed anew, only in cases in which the first proceedings did not create a legal jeopardy. But when the indictment is sufficient and the proceedings are regular, before a tribunal having jurisdiction down to the time when the jeopardy attaches, there can be no second jeopardy allowed in favor of the State on account of any lapse or error at a later stage" (section 665); and further, "if the tribunal has authority * * whether it is an inferior one, as a justice's court, or whether it is a superior tribunal, a conviction or acquittal in it will be a bar to any subsequent proceedings in the same, or by any other judicatory." Section 666. And these propositions, plain and unquestionable in themselves, are abundantly supported by the authorities cited in the notes.

*

In The State v. Reynolds (2 Hayw. 110) the Supreme Court of Tennessee held, that a writ of error or appeal in the nature thereof would not lie for the State in a criminal case. In the course of the opinion we find this language: "It is a rule of the common law that no one shall be brought twice in jeopardy for the same offense.

The State v. Van Horton.

Were it not for this salutary rule, one obnoxious to the government might be harrassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule it is that a new trial cannot be granted in a criminal case when the defendant is acquitted. A writ of error will lie for the defendant but not against him. And see the observations of BRONSON, J., in The People v. Corning, 2 Comst. 9, and cases there cited; also of SHAW, Ch. J., in The Commonwealth v. Cummings, 3 Cush. 212; 1 Bishop, § 658, and the very full note (3).

We do not say that the State may not under this statute, and perhaps others, take steps to have the erroneous rulings of these inferior tribunals corrected precisely as in this court it may have reviewed those made by the District Court. What we hold is, that, where the accused after trial upon the merits has been acquitted before the justice, the State cannot, upon appeal, compel him to stand a second trial. For if so then it would be just as competent to allow the State to appeal after an acquittal before the justice and in the District Court, and if the cause should be here reversed, have a third trial; and if there should be a third acquittal, then another appeal, and so on without end; and thus the constitutional guaranty would not be "worth the parchment upon which it is written." When the jeopardy has once attached (as it surely has when there has been a trial and acquittal before a court of competent jurisdiction), the State under no known rule can be allowed to take a backward step, neither the justice nor the District Court (if the trial had been there), could, after such acquittal, grant a new trial. What could not be done in one form of proceeding could not, in view of defendant's constitutional rights, in another.

Affirmed.

The State v. Johnson and Johnson.

THE STATE v. JOHNSON and JOHNSON.

1. Criminal law: FORGERY. The false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability, is forgery.

2.

3.

INDICTMENT IN FORGERY. While in an indictment for forgery it is necessary to set out a copy of the instrument, it need not be prefaced by any technical form of words to express that it is so set out; and the words “of the purport and effect following," are sufficient, at least under our statute.

ANIMAL SCALP BOUNTY CERTIFICATE. The certificate of a justice of the peace authenticating the presentation and counting of gopher scalps for which a bounty has been offered by the board of supervisors, which is to be received by the board as legal proof of such counting, for the purpose of issuing warrants to pay the bounty claimed, is the subject of forgery.

FORGERY OF INSTRUMENTS WANTING LEGAL EFFICACY. While there can be no forgery of an instrument invalid upon its face, yet, on the other hand, it is not necessary that it should have actual legal efficacy, and it is sufficient that, if genuine, it might have such apparent efficacy. Although its invalidity might be established by extrinsic facts it may, nevertheless, be capable of effecting a fraud, and the subject of forgery.

Appeal from Marshall District Court.

THURSDAY, JANUARY 28.

FORGERY.-The indictment charges that one David Burns was a justice of the peace, and, as such, authorized by the board of supervisors to count and destroy gopher scalps produced before him, and make and issue his certificate of such counting and destruction to the parties producing the same before him; that said certificates were taken and received by the said supervisors as legal proof of the counting, etc., for the purpose of issuing warrants thereon to the holders thereof on the treasury

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The State v. Johnson and Johnson.

of the county, as the bounty authorized by them for the destruction of gophers; that the county board allowed fifteen cents for each scalp; that the defendants on, etc., willfully, etc., "did make, forge and counterfeit a certain certificate purporting to be a certificate which had been duly issued by the said David Burns, as justice of the peace, as aforesaid, as evidence to the board of supervisors, of the counting and destruction of gopher scalps; which said false, etc., certificate is of the purport and effect following, to wit: "Timber Creek township, Marshall county, Iowa, July 1, 1868. This certifies that Joseph Kelly presented at my office this day two hundred and thirty-five (235) gopher scalps which were duly counted and destroyed by me, David Burns, J. P.— "contrary to the statute, etc."

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Demurrer to indictment overruled. Trial and verdict of guilty. Motion in arrest overruled. Judgment on the verdict, and defendant appeals.

Street & Lamb for the appellant.

I. The indictment is defective and insufficient, for the reason that it does not set forth therein a copy of the instrument alleged to have been forged, but only sets forth the purport and effect of said instrument.

A full and true copy of the instrument alleged to have been forged must be set forth in the indictment, or a reasonable excuse assigned in the indictment for omitting to set forth such copy. State v. Callendine, 8 Iowa, 289; Commonwealth v. Houghton, 8 Mass. 107, 110; State v. Jones, 1 McMullen, 236; Barbour's Crim. Law, 2d ed., 121, 122, and cases there cited; Russell on Crimes, 8th ed., vol. 2, p. 372, and cases there cited in note; Biggs v. The People, 8 Barb. 547; Wharton's Crim. Law, $3 305, 306, 307; Wharton's Precedents of Indictments and Pleas, 264; People v. Franklin, 3 Johns. Lead. Cases,

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