2 Caines 340; 1 Johns. R. 66 (N.Y. 1806)
In The Founders’ Constitution, an anthology of writings (letters, records of debates and early cases) relating to the Federal Constitution, the opinions of all five Justices of the New York Supreme Court of Judicature in People v. Barrett and Ward are included as Document 32 of the materials underlying Amendments V and VI of the United States Constitution (Criminal Process).
Barrett and Ward were indicted in September 1793 at the General Sessions of the Peace in Washington County, New York, on charges of conspiring to defraud Oliver Darren by transferring to him a promissory note knowing that the maker of the note was insolvent. The trial was held in the Washington County Court of Oyer and Terminer in June 1804. After the defendants had pleaded to the indictment and the jury had been sworn, the prosecutor began to present the evidence against the defendants. He then realized that the original promissory note was not in the court. Without the consent of defendants, the court granted the District Attorney’s motion to withdraw a juror. The next day, the defendants were again indicted, tried, found guilty and convicted.
On appeal to the Supreme Court of Judicature, the defendants were represented by attorney Crary and the People by District Attorney Russel. The Court, in an opinion written by Justice Brockholst Livingston, held that the power to withdraw a juror is limited to cases of very urgent necessity where it is impossible to proceed without injustice to the public or the defendant. Where, as here, the public prosecutor was unable to proceed because, through his own fault, he lacked evidence to convict, the prisoners cannot afterward be tried on the same indictment (2 Caines 340). Accordingly, the defendants were discharged.
In the June 1905 term of the Washington County Court of Oyer and Terminer, Barrett and Ward were again indicted on charges of conspiracy to defraud Oliver Darren. They pleaded double jeopardy (autrefois acquit), and the matter came before the Supreme Court of Judicature in February 1806. The decision of the Court was 3-2 with the majority overruling the plea of double jeopardy, and requiring the defendants to plead de novo (1 Johns. R. 66). The individual justices decided as follows:
Justice Daniel Tompkins held that because the conspirators, the facts of the conspiracy, the promissory note and the intended victim of the conspiracy were the same in every substantial matter, the law forbade that Barrett and Ward “shall be twice put in jeopardy for the same offence.”
Justice Ambrose Spencer determined that the initial indictment failed to specify a venue where the fraudulent statement concerning the promissory note was made, therefore that indictment was defective. Because Barrett and Ward were never in jeopardy under the first indictment, they must plead on the second.
Justice Smith Thompson also considered the first indictment defective for failure to specify a venue, and thus no bar to any further prosecution for the same offence.
Justice Livingston stated that “a power to try ad infinitum, as often as some latent defect be discovered in an indictment, may not only be abused in the hands of an attorney general but is unsafe in those of a court. If judges have the power of putting a party on his defence a second, or a third time, because of imperfections of this kind, there is no man who may not, if the court please, be finally convicted or cruelly harassed by such a course of proceeding.”
Chief Justice James Kent concluded that the initial indictment was defective for failure to state the venue of the fraudulent statements. He also considered that because “the specific prentences by which the fraud was to be effected were not laid as having been agreed upon at the time of the conspiracy,” there was a second defect in the initial indictment. He also stated that “The general rule of law, as laid down by Serjeant Hawkins, and which he takes to be settled at this day, is this, ‘that wherever the indictment, whereon a man is acquitted, is so far erroneous, (either for want of substance in setting out the crime, or of authority in the judge before whom it was taken,) that no good judgment could have been given upon it against the defendant, the acquittal can be no bar of a subsequent indictment, because, in judgment of law, the defendant was never in danger of his life from the first; for the law will presume, prima facie, that the judges would not have given a judgment which would have been liable to have been reversed.”