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and each floor was occupied by one family, living independently of the others, and doing its cooking in one of the rooms thus occupied. Jacobs was engaged in one of his rooms in preparing tobacco and making cigars, but there was no smell of tobacco in any part of the house except in that room. For this violation of the act he was arrested. A writ of habeas corpus sued out in the court below for his discharge was dismissed at the Special Term of the Supreme Court. On appeal to the General Term this order was reversed, and the case was taken to the Court of Appeals. There the claim was made that the Legislature passed this act in the exercise of its police power; but the court said in answer: Generally it is for the Legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety; and when its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts; but they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the Legislature is not final and conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, and interferes with his personal liberty, then it is for the courts to scrutinize the act, and see whether it really relates to and is convenient and appropriato to promote the public health. It matters not that the Legislature may, in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared, and enforce the supreme law."

And the court concluded an extended consideration of the subject by declaring that when a health law is challenged in the courts as unconstitutional, on the ground that it arbitrarily interferes with personal liberty and private property without due process of law, the court must be able to see that it has in fact some relation to the public health, that the public health is the end aimed at, and that it is appropriate and adapted to that end; and as it could not see that the law in question, forbidding the cigar-maker from plying his trade in his own room in the tenement house, when allowed to follow it elsewhere, was designed to promote the public health, it pronounced the law unconstitutional and void. If the courts could not in such cases examine into the real character of the act, but must accept the declaration of the Legislature as conclusive, the most valued rights of the citizen would be subject to the arbitrary control of a temporary majority of such bodies, instead of being protected by the guaranties of the Constitution. In the recent prohibition cases from Kansas this court, after stating that it belonged to the legislative department to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health or the public safety, added: "It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go. *The courts are not bound

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by mere form, nor are they to be misled by mere pretenses. They are at liberty-indeed are under a solemn duty-to look at the substance of things whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If therefore a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so ad

judge, and thereby give effect to the Constitution." Mugler v. Kansas, 123 U. S. 623, 661.

In Watertown v. Mayo the Supreme Court of Massachusetts, speaking of the police power of the State, said: "The law will not allow rights of property to be invaded under the guise of a police regulation for the preservation of the health, or protection against a threatened nuisance; and when it appears that such is not the real object and purpose of the regulation, the courts will interfere to protect the rights of citizens." 109 Mass. 315, 319.

It would seem that under the Constitutions of the States no Legislature should be permitted, under the pretense of a police regulation, to encroach'upon any of the just rights of the citizen intended to be secured thereby. Be this as it may, certain it is that no State can, under any pretense or guise whatever, impair any such rights of the citizen which the fundamental law of the United States has declared shall neither be destroyed nor abridged. Were this not so, the protection which the Constitution designed to secure would be lost, and the rights of the citizen would be subject to the control of the State Legislatures, which would in such matters be practically omnipotent. What greater invasion of the rights of the citizen can be conceived than to prohibit him from producing an article of food, conceded to be healthy and nutritious, out of designated substances, in themselves free from any deleterious ingredients? The prohibition extends to the manufacture of an article of food out of any oleaginous substances, or compounds of the same, not produced from milk or cream, to take the place of butter or cheese. There are many oleaginous substances in the vegetable as well as in the animal world besides milk and cream, but out of none of them shall any citizen of the United States within the limits of Pennsylvania be permitted to produce such an article of food for public consumption. Only out of pure milk or cream shall that article be made, notwithstanding the vast means for its production furnished by the vegetable as well as the animal kingdom. The full force of the doctrine asserted will be apparent if the extent is considered to which it may be applied. The prohibition may be extended to the manufacture and sale of other articles of food, of articles of raiment and fuel, and even of objects of convenience. Indeed there is no fabric or product the texture or ingredients of which the Legislature may not proscribe by inhibiting the manufacture and sale of all similar articles not composed of the same materials.

The answer to the second question is equally conclusive against the decision of the court. In prohibiting the saie of the article which had been manufactured by the defendant pursuant to the laws of the State, the Legislature necessarily destroyed its mercantile value. If the food could not be used without injury to the health of the community, as would be the case perhaps if it had become diseased, its sale might not only be prohibited, but the article itself might be destroyed. But that is not this case. Here the article was healthy and nutritious, in no respect injuriously affecting the health of any one. It was manufactured pursuant to the laws of the State. I do not, therefore, think the State could forbid its sale or use-clearly not without compensation to the owner. Regulations of its sale, and restraints against its improper use undoubtedly could be made, as they may be made with respect to all kinds of property; but the prohibition of its use and sale is nothing less than confiscation. As I said in Bartemeyer v. Iowa, 18 Wall. 137, with reference to intoxicating liquors, so I say with reference to this property, I have no doubt of the power of the State to regulate its sale when such regulation does not amount to the destruction of the right of property in it. "The right of property in an article involves

the right to sell and dispose of such article, as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State the fourteenth amendment affords protection. But the prohibition of sale in any way or for any use is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community."

The fault which I find with the opinion of the court on this head is that it ignores the distinction between regulation and prohibition.

EASEMENTS-LIGHT AND AIR-MALICIOUS
OBSTRUCTION.

MICHIGAN SUPREME COURT, APRIL 20, 1888.

BURKE V. SMITH.

A fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, is a nuisance.

Hampden Kelsey, for appellant.

George M. Buck, for appellee.

MORSE, J. The parties to this suit own adjoining lots in the city of Kalamazoo. The complainant built two dwelling-houses on his lot for the purposes of rental. One house fronts on Park street; the other upon Osborn street. These houses came up within about two feet of the line between him and the defendant. When the houses were built, Smith had a house on his lot fronting on Park street, with room for a drive-way between his house and complainant's premises. About the time complainant erected his houses, Smith built a house on his lot fronting on Osborn street. Complainant's houses were about fourteen feet front, with a single tier of rooms running back from the street. These parties got into a quarrel, and as a result of petty annoyances on both sides, the defendaut finally put up a screen or fence in front of the lower side windows of the complainant, as it is claimed, covering, obscuring and darkening the same, and shutting out the light and air therefrom, The evidence shows these screens to be two in number and about eleven feet high, coming up to the top of the lower windows of complainant's houses. They were built by setting posts in the ground and nailing boards against them. They were open at the bottom below the windows. I think it is established by the evidence that these screens were not put up for a fence or any other necessary or useful or ornamental purpose, but simply to shut out the view of defendant's premises from complainant's windows. Smith claims that he did not wish the occupants of complainant's houses to gaze into his windows or to witness the getting out of and into carriages of his family at the horse block beside the drive-way, and for that reason put up these barriers. There is plenty of evidence that when he was erecting these screens he said he was doing it to shut the light out of Burke's windows. I think there was nothing but malice in his motives. The complainant files his bill of complaint alleging the ownership, value and use of the property belonging to him; the desirability of these houses for rental to families being averred as constituting their chief value. He alleges that these screens were unnecessarily erected from malicious motives and for the express and avowed purpose of darkening the windows of his two houses and cutting off the light from entering the windows of said houses, obstructing the view from them, and thereby injuring the value of the

houses. Avers that they are an intolerable nuisance; that by their existence light and air are prevented from freely entering his houses, the view from the windows is wholly obstructed and cut off, the looks and appearance of the houses greatly injured, their desirability as homes greatly lessened, their rental value depreciated, and their actual market value reduced more than $500. Prays that said screens may be abated as a nuisance and a perpetual injunction allowed against a continuation or renewal of the same. The court below granted the prayer of the complainant's bill.

These screens are erected entirely upon the lot of the defendant, and he appeals to this court, claiming that he has a perfect right to erect and maintain them, and that the question of his motives has nothing to do with the legal aspects of the case, though he disclaims any malice against complainant. It must be taken for granted, in discussing this case, that these screens were not erected for the purposes of a fence or for any other necessary, useful or ornamental purpose. The pretense that they were built to keep prying eyes from observing what was going on in the houses or yard of the defendant is not supported by the proofs. The evidence is clear to my mind that malice alone entered into the reason and motive of their erection. The proofs are conclusive upon this subject. It is admitted by the counsel for the complainant that he would have no redress had the defendant erected houses or useful buildings or structures as near to complainant's line as these screens are, even though the consequent damage of such erection would have been as great or greater than it has been and now is from the effect of these screens upon the dwellings of complainant in every respect here complained of. But his contention is that these screens being a damage to the houses of complainant, and being erected for no good or useful purpose, but with the malicious motive of doing injury, they become and are such a nuisance to the property of complainant that equity will cause their removal and enjoin their future erection or continuance. He invokes the legal maxim that "every man in the use of his own property must avoid injury to his neighbor's property as much as possible;" and argues, that while it is true that when one pursues a strictly legal right his motives are immaterial, yet no man has a right to build and maintain an entirely useless structure for the sole purpose of injuring his neighbor. The argument has force, and appears irresistible in the light of the moral law that ought to govern all human action. And the civil law, coming close to the moral law, declares that "he who, in making a new work upon his own estate, uses his right without trespassing either against any law, custom, title or possession which may subject him to any service toward his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without advantage to himself." Thus the civil law recognizes the moral law, and does not permit the owner of land to do an act upon his own premises for the express purpose of injuring his neighbor, when the act brings no profit or advantage to himself. The law furnishes redress, because the injury is malicious and unjustifiable. The moral law imposes upon every man the duty of doing unto others as he would that they should do unto him; and the common law ought to, and in my opinion does require him to so use his own privileges and property as not to injure the rights of others maliciously and without necessity. It is true that he can use his own property, if for his own benefit or advantage, in many cases to the injury of his neighbor; and such neighbor has no redress, because the owner of the property is exercising a legal right which infringes on no legal

property, even to the detriment or total obstruction of air and light from his windows, if such windows are so near the premises of his neighbor that his building upon his land will darken or destroy them. Such be

right of the other. Therefore and under this principle the defendant might have erected a building for useful or ornamental purposes and shut out the light and air from complainant's windows; but when he erected these "screens" or "obscurers" for no usefuling the law here, the reason for the decision in Mahan or ornamental purpose, but out of pure malice against his neighbor, it seems to me a different principle must prevail. I do not think the common law permits a man to be deprived of water, air or light for the mere gratification of malice. No one has an exclusive property in any of these elements except as the same may exist or be confined entirely on his own premises. If a pond of water lies entirely within his lands, without inlet and outlet, he may do with it as he pleases while he keeps it upon his own premises. He may also use as he pleases what air or light he can keep and hold within his dominion upon his own lands. But to the air and light between the earth and the heavens the right of each man is more or less dependent upon that of his neighbor. His neighbor must bear the inconvenience and annoyance that the legal and beneficial use of his premises engenders in this respect, if such use falls short of what the law treats as a nuisance; but the right to use one's premises to shut out or curtail the use of either of these elements by his neighbor, out of mere malice and wickeduess, when such use is not beneficial to him in any sense, does not exist in law or equity. The complainant in this case had a right to the use of the air and light about his houses and over defendant's lands until such right came in conflict with the defendant's enjoyment of his property. This air and light was free and unconfined and the common property of all.

The leading case relied upon by the defendant, and which has been followed by the courts of several of the States, is Mahan v. Brown, 13 Wend. 261. The action was brought for the obstruction of lights. It was averred that the defendant had wantonly and mali. ciously erected near to and in front of plaintiff's windows a fence of the height of fifty feet, without benefit or advantage to himself and for the sole purpose of annoying plaintiff, by means whereof her house was greatly darkened, and the light and air obstructed from entering the same through the windows, rendering the house uninhabitable, so that her boarders had left her, and her apartments were untenanted, etc. This fence was built, as the screens in this case were, by the defendant under the pretense of preventing his yard from being overlooked by the windows of the plaintiff's house, but in fact from mere malice, and with the intent to exclude the light and air from the windows of the plaintiff. The court, Savage, C. J., delivering the opinion, held that a person who makes a window in his house overlooking the privacy of his neighbor does an act which strictly he has no right to do, although it is said no action lies for it. "He is therefore encroaching, though not strictly and legally trespassing upon the rights of another. He enjoys an easement therefore in his neighbor's property, which in time may ripen into a right. But before sufficient time has elapsed to raise a presumption of a grant he has no right and can maintain no action for being deprived of that easement, let the motive of deprivation be what it may; and the reason is that in the eye of the law he is not injured. He is deprived of no right, but only prevented from acquiring a right, without consideration, in his neighbor's property." The time fixed for acquiring this right or easement in the opinion is twenty years. I apprehend that at this late day this is not the law in Michigan and that it never was. A man here has a right to build a window in his house overlooking his neighbor's land, and he gets or gains no easement in his neighbor's property by so doing; and no lapse of time will make his right "ancient," or prevent his neighbor from the beneficial use of his

v. Brown does not exist in and can have no application to the case under consideration. This ruling in Mahan v. Brown is followed in Phelps v. Nowlen, 72 N. Y. 39; Chatfield v. Wilson, 27 Vt. 671; Walker v. Cronin, 107 Mass. 555, and many other cases. In a well-reasoned case in 74 Me. 164 (Chesley v. King), the authorities are reviewed, and the court reach the conclusion that it cannot be regarded as a maxim of universal application that malicious motives cannot make that a wrong which in its own essence is lawful." In that case the defendant dug a well upon his own land, which cut off the sources of supply from a spring upon plaintiff's premises. There was a special finding that defendant dug the well for the "mere, sole and malicious purpose of diverting the veins of water which supplied the spring, and not for the purpose of procuring a better supply of water for himself and improving his estate." The Supreme Court found that this special finding was not supported by the evidence, but they take issue with the doctrine of Phelps v. Nowlen, 72 N. Y. 39, and Chatfield v. Wilson, 27 Vt. 671, and hold, in substance, that if the special finding had been true, the plaintiff's action would have been sustained. I am satisfied that the decree of the court below in this case is just and equitable and can be sustained, if not by the weight of authority, by the better reason and the best authority. In Chasemore v. Richards, 7 H. L. Cas. 387, 388, the court, in laying down the rule that the owner of land has a right to the enjoyment of the land and to the underground water upon it, and that he may, in order to obtain that water, sink a well to the injury of his neighbor, qualify the rule by saying that "it seems right to hold that he ought to exercise his right in a reasonable manner, with as little injury to his neighbor's rights as may be," and allude to the fact that the civil law deems an act, otherwise lawful in itself, illegal if done with a malicious intent of injuring a neighbor animo vicino nocendi." In Greenleaf v. Francis, 18 Pick. 117, it is said: "These rights should not be exercised from mere malice." See also Wheatley v. Baugh, 25 Penn. St. 528; Roath v. Driscoll, 20 Conn. 533; Trustees v. Youmans, 50 Barb. 316, 320; Panton v. Holland, 17 Johns. 92, 98; Haldeman v. Bruckhart, 45 Penn. St. 514. In an Ohio case the query is raised, but not answered, whether if a hole was dug upon one's premises to the damage of his neighbor, "from motives of unmixed malice, without any object, and when done, incapable of answering any end, either of ornament, convenience or profit, connected with the enjoyment or use of his property," an action would not lie for the injury. Frazier v. Brown, 12 Ohio St. 294, 304. Mr. Cooley, in his work on Torts, in speaking of nuisances, says: "If a discomfort is wantonly caused from malice or wickedness, a slight degree of inconvenience may be sufficient to render it actionable." Cooley Torts, 596. Mr. Washburn, in his treatise on Easements, quotes with favor the doctrine as to rights in the use of water laid down in Wheatley v. Baugh, supra: "Neither the civil nor the common law permits a man to be deprived of a spring or stream of water for the mere gratification of malice. * * * The owner of land on which a spring issues from the earth has a perfect right to it against all the world, except those through whose lands it comes. He has even a right to it against them until it comes in conflict with the enjoyment of their right of property." Washb. Easem. (3d ed.) 487, 488. I cannot see why this principle does not apply with equal force to air and light, which are more free and less capable of confine

already existing and now imposed by statute upon them, which is only confirmatory of the common law. The decree of the court below is affirmed with costs of both courts.

Sherwood, J., concurred; Campbell, C. J., and Champlin, J., dissenting.

NEW YORK COURT OF APPEALS ABSTRACT.

CRIMINAL LAW - HOMICIDE — APPEAL- EVIDENCE -FORMER ACQUITTAL.-(1) Under the laws of New York, 1887, chap. 493, allowing an appeal from a con

ment than water; and when there is, as in this State, no danger of a prescriptive right being acquired in windows, the reason assigned by Washburn and others for the distinction between the two elements, light and water, is not applicable. See Washb. Easem. 489; Mahan v. Brown, 13 Wend. 264. If a man has no right to dig a hole upon his premises, not for any benefit to himself or his premises, but for the express purpose of destroying his neighbor's spring, why can he be permitted to shut out air and light from his neighbor's windows, maliciously and without profit or benefit to himself. By analogy it seems to me that the same principle applies in both cases, and that the law will interpose and prevent the wanton injury in each in-viction, in a capital case, directly from the trial court stance. In Phelps v. Nowlen, supra, it is stated that the doctrine is settled in New York "that if a man has a legal right, courts will not inquire into the motive by which he is actuated in enforcing the same. A different rule would lead to the encouragement of litigation and prevent, in many instances, a complete and full enjoyment of the right of the property which inheres to the owner of the soil. An idle threat to do what is perfectly lawful, or declarations which assert the intention of the owner, might often be construed as evincing au improper motive and a malignant spirit, when in point of fact they merely stated the actual rights of the party. Malice might be easily inferred sometimes from idle and loose declarations, and a wide door be opened by such evidence to deprive an owner of what the law regards as well-defined rights." But it must be remembered that no man has a legal right to make a malicious use of his property, not for any benefit or advantage to himself, but for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine, in cases like the present, to injure and destroy the peace and comfort and to damage the property of one's neighbor for no other than a wicked purpose, which in itself is or ought to be unlawful. The right to do this cannot in an enlightened country exist, either in the use of property or in any way or manner. There is no doubt in my mind that these uncouth screens or "obscurers" as they are named in the record, are a nuisance, and were erected without right and for a malicious purpose. What right has the defendant, in the light of the just and beneficent principles of equity, to shut out God's free air and sunlight from the windows of his neighbor, not for any benefit or advantage to himself or profit to his land, but simply to gratify his own wicked malice against his neighbor? None whatever. The wanton infliction of damage can never be a right. It is a wrong and a violation of right, and is not without remedy. The right to breath the air and to enjoy the sunshine is a natural one; and no man can pollute the atmosphere or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice toward his neighbor. It is said that the adoption of statutes in several of the States making this kind of injury actionable shows that the courts have no right to furnish the redress without statutory authority. It has always been the pride of the common law that it permitted no wrong with damage without a remedy. In all the cases where this class of injuries have occurred, proceeding alone from the malice of the defendant, it is held to be a wrong accompanied by damage. That courts have failed to apply the remedy has never been felt a reproach to the administration of the law; and the fact that the people have regarded this neglect of duty on the part of the courts so gross as to make that duty imperative by statutory law furnishes no evidence of the creation of a new right or the giving of a new remedy, but is a severe criticism upon the courts for an omission of duty

to the Court of Appeals, and providing that a new trial may be granted in such case where the court is satisfied that the verdict is against the weight of evidence, or that justice requires a new trial, no power is conferred on the Court of Appeals to grant new trials for any other or less reasons than those governing the Supreme Court in similar cases, but said court is simply invested with the same jurisdiction in that respect as was formerly possessed by the Supreme Court. (2) There was evidence of previous threats and strong motives to commit the crime, and a number of disinterested witnesses testified that defendant followed deceased, her husband, on the street and shot him from behind, as he was walking along apparent y uncon scious of her presence; while the uncorroborated testimony of defendant was that she had just been assaulted by deceased with a razor and shot him in self-defense, which was wholly inconsistent with the facts as stated by the other witnesses and with other circumstances. Held, that the verdict of guilty of murder in the first degree should not be set aside as against the weight of evidence. (3) After the prosecution had rested, by mutual consent of defendant, the district attorney and the court, the jury was discharged, and the defendant withdrew her plea of not guilty, and by leave of the court pleaded guilty of murder in the second degree, but no sentence was pronounced. Later in the term, defendant, by consent of the court and district attorney, withdrew her plea of guilty and again pleaded not guilty. Held, that the acceptance of the plea of guilty of murder in the second degree was not an acquittal of the charge of murder in the first degree and was no bar to a conviction therefor. It would bea complete answer to this claim in point of law that the defense of former acquittal must be pleaded, and that in the absence of a plea setting it up, the question cannot be raised. This was the rule before the enactment of the Code of Criminal Procedure, and is recognized by that statute. People v. Benjamin, 2 Park. Crim. 201: Code, §§ 332, 339. See also State v. Barnes, 32 Me. 230; 2 Bish. Crim. Proc., §§ 806, 813. But in a capital case, if it was made to appear that there had been a former acquittal, we should deem it our duty under the statute of 1887 to take notice of the fact, although not presented by a formal plea. The contention that the acceptance of the plea of guilty of murder in the second degree on the former trial was in law an acquittal of the higher offense, notwithstanding its withdrawal at the instance of the defendant, is placed on the supposed analogy with those cases in which it has been held that where a defendant indicted for murder is put on trial for that crime, a conviction of murder in the second degree, or of manslaughter, is an acquittal of any higher degree of the crime than that for which he was convicted; and that, although the defendant succeeds in procuring a reversal of the judgment convicting him of the lesser offense, he does not thereby waive the benefit of the former verdict as an acquittal for the higher offense, but may insist upon it, and he cannot thereafter be tried for any higher degree of the crime than that of

which he was formerly convicted. The preponder-
ating weight of authority sustains the general princi-
ple as above stated. Slaughter v. State, 6 Humph. 411;
State v. Ross, 29 Mo. 32; People v. Gilmore, 4 Cal. 378;
State v. Hornsby, 8 Rob. (La.) 588; State v. Kittle, 2
Tyler, 472.
In Ohio a different rule prevails. Jarvis

the higher crime. It left the case without any plea whatever until the defendant again interposed her general plea of not guilty to the whole indictment; and in a criminal case an arraignment and plea are essential to a valid trial and judgment. People v. Bradner, 107 N. Y. 9, and cases cited. The waiver wrought by the withdrawal of the plea involved the waiver of all which depended on the plea, and this included a waiver of the benefit of the implication which existed, so long as the plea remained, of an acquittal of the higher crime. We think that neither upon reason or principle can the defense of former jeopardy be maintained. As to waiver in criminal cases see Pierson v. People, 79 N. Y. 479, and cases cited. The case of Kring v. Missouri, 107 U. S. 221, does not, we think, decide the question now presented. In that case there was a confession of the crime of murder in the second degree, followed by sentence and judgment in the State court of Missouri. The sentence was set aside by the appellate court of the State, because in violation of an understanding between the prosecuting officer, the defendant and the court as to the length of sentence in case the defendant should plead guilty, and the appellate court remanded the case to the lower court for further proceedings. When the cause was again moved the defendant stood on his plea of guilty of murder in the second degree, and its acceptance by the court, and refused to withdraw it. The court thereupon directed a plea of not guilty to be put upon the record, against the defeudant's protest, and he was thereupon tried and convicted of murder in the first degree. The judgment was reversed by the Supreme Court of the United States. In the present case there was neither sentence nor judgment on the plea, and the defendant voluntarily withdrew the plea and pleaded over to the indictment. It is quite clear from the prevailing opinion in the Kring case that the absence of these circumstances in that case had a controlling influence. We are of opinion therefore that the defense of former

v. State, 19 Ohio St. 585. In this State the same doctrine is recognized in cases of inferior offenses. Guenther v. People, 24 N. Y. 100; People v. Dowling, 84 id. 478. The question has not arisen in this State. so far as we know, on an indictment for murder; but a fortiori, if the doctrine contended for is applicable in chse of minor offenses, it is to those of the higher grade. In determining whether the principle of these decisions is applicable in the present case, the ratio decidendi is to be considered. The doctrine that a man once tried and convicted or acquitted of a crime on a valid indictment, by a court of competent jurisdiction, cannot be tried again for the same offense, has its foundation in the principles of justice, and was a very ancient doctrine of the common law. It is embodied in that provision of the Constitution of our State (art. 1, § 6,) which declares that "no person shall be subject to be twice put in jeopardy for the same offense." In declaring the application of this constitutional principle, it is well settled that an acquittal or conviction by verdict of a jury, although not followed by judgment or sentence, is an acquittal or conviction which protects an accused person against another trial, provided there was a competent court and a lawful indictment, or in case of conviction, so long as the judgment remains unreversed. And whether the conviction was on confession or by verdict, the rule was the same. Shepherd v. People, 25 N. Y. 406, and cases cited. But in this State and generally elsewhere a party convicted is permitted, in some form, to have a review for the purpose of correcting any errors of fact or law which may have been committed on the trial; and it became a settled qualification of the doctrine that a party could not be twice tried for the same offense, that by seeking and obtain-acquittal, if properly pleaded, could not have preing a new trial for error, he thereby waived the constitutional protection, and could be again tried for the offense of which he formerly was convicted. United States v. Keen, 1 McLean, 435; People v. Dowling, supra. But this doctrine in turu was limited so as to protect a defendant who secured a reversal and new trial from being again put on trial for a higher grade of the same offense or for another offense included in the same indictment, of which higher grade or of which other offense the first conviction was by inference an acquittal. So it was held that a verdict of conviction of one of several offenses charged in an indictment or of a lesser degree of a single offense, implied, although the verdict was silent on the subject, that the jury found the defendant not guilty of such other offenses, or of the higher degrees of the same offense. It was on the theory that the verdict was separate and divisible, being both a verdict of acquittal and conviction, and that there was no inconsistency between a claim that the defendant was not guilty even of that of which he was convicted, and the claim that the verdict still stood as an acquittal of the other matters charged in the indictment, that the defendant was permitted on a new trial to urge the former verdict as an acquittal of all the matters charged other than that on which the conviction was had. The reason of the rule has, we think, no application to the present case. The confession of guilty of murder in the second degree having been voluntarily withdrawn by the defendant on her application to the court, removed, as is justly claimed by the assistant district attorney in his very able argument, the only proof which sustained alike the conviction, as also the constructive acquittal of the defendant of

vailed. June 5, 1888. People v. Cignarale. Opinion by Andrews, J.

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INCEST BETWEEN FATHER AND ILLEGITIMATE DAUGHTER-INDICTMENT-MISNOMER. - Under the Penal Code, § 302, providing that "persons, being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, * who shall commit adultery or fornication with each other, shall, upon conviction, be punished," etc., a father who has sexual intercourse with his illegitimate daughter is guilty of incest. The law draws no such distinction. If it did, we should be ashamed of it, for the offense, although committed with a daughter born out of wedlock, is not by that fact mitigated or condoned. She stood related to him by consanguinity within the forbidden degrees. That she had no inheritable blood for the purposes of descent and distribution does not alter the actual and natural relation. Kent says, while speaking of the general legislation relative to bastards: "This relaxation in the laws of so many of the States of the severity of the common law rests upon the principle that the relation of parent and child, which exists in this unhappy case in all its native and binding force, ought to produce the ordinary legal consequences of that consanguinity." 2 Kent Comm. *213. It was early held to be unlawful for a bastard to marry within the Levitical degrees (Hains v. Jeffel, 1 Ld. Raym. 68), a doctrine which of necessity recognized relationship and consanguinity. But our statutes leave no room for any reasonable doubt. The Penal Code enacts (section 302) that "persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who shall uter

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