13 Johns. R. 351 (1816)
Double Jeopardy
In The Founders Constitution, an anthology of writings (letters, records of debates and early cases) relating to the Federal Constitution, the opinion of Justice Spencer in People v. Casborus is included as Document 38 of the materials underlying Amendments V and VI of the United States Constitution (Criminal Process).
The New York Supreme Court of Judicature, in the case of People v. Barrett and Ward, held that following an acquittal upon an indictment so defective that no good judgment could be given upon it, the defendant could be indicted and tried a second time.
Ten years later, Mr. Casborus was accused of stealing promissory notes and was tried and convicted by a jury in the Court of General Sessions, Rensselaer County, in November 1815. The court arrested judgment on the indictment on the ground that it was defective, and defendant was released. The District Attorney subsequently brought an indictment in the Court of Oyer and Terminer for Rensselaer County. It was, in all respects, the same as the original indictment. Casborus’ plea of double jeopardy (autrefois acquit) was overruled by the court, and he was tried, convicted and sentenced to seven years imprisonment.
On appeal to the New York Supreme Court of Judicature, the Court held that the arrest of a judgment after a conviction on an indictment for a felony is not a bar to a second indictment for the same offense, even though the second indictment is the same as the original indictment. In his opinion, Justice Ambrose Spencer stated that the effect of arresting a judgment is the same as quashing an indictment — the latter happens before trial and the former after. Because no writ of error could be brought from the decision of the Court of Sessions to arrest the judgment, a second prosecution for the same offense was not barred.