4

§ 15. Continued. If during the trial a nol pros. is entered;1 or the wrong judgment is entered on the verdict; or the court discharges the jury against the consent of the defendant, before they have had a reasonable time to deliberate; or the hearing is stopped on account of the absence of a material witness for the prosecution, or on account of his not being acquainted with the nature of an oath, so as to require instruction before testifying, or on account of the witness being taken suddenly too ill to proceed, or on account of the withdrawing of a juryman; or the jury separate by permission of the officer without the consent of the court,—the legal effect is an acquittal, and no second trial can be had." A verdict is a bar to a subsequent prosecution, though no judgment has been entered upon it.10 If the jury convict the defendant on an insufficient indictment, and judgment is entered on the verdict, he will be protected while the judgment remains unreversed." Even if an appeal or writ of error could be taken by the people, the accused, on the reversal of the judgment acquitting him, could not be again tried or put in jeopardy for the same offense.12

§ 16. Continued - Effect of a Verdict of Guilty of Lesser Offense or upon One of the Count in any Indictment. - A verdict of guilty on one count of an indictment,13 or of guilty of a part of the charges in an indictment, has the effect of an acquittal as

'State v. Kreps, 8 Ala., 951; Mount v. State, 14 Ohio, 295.

2 Shepherd v. People, 25 N. Y., 407.

3

4

Wright v. State, 5 Ind., 290; Hines v. State, 8 Humph., 597.

People v. Barrett, 2 Cai., 304; U. S. v. Shoemaker, 2 McLean, 114; Harker v. State, 8 Blackf., 540.

* Rex v. Wade, 1 Moody, 86; Reg. v. Onlaghn, Jebb, 270.

* Rex v. Kell, 1 Crawf. & Dix. C. C., 151.

'Klock v. People, 2 Park., 672; U. S. v. Shoemaker, 2 McLean, 114; Peo

12 U. S. v. Salter, 1 Pin. Wis., 278; State v. Kemp, 17 Wis., 669.

" Stoltz v. People, 4 Scam., 168; Chambers v. People, 4 Scam., 351.

to the other counts or parts of the indictment, even though the verdict is silent as to them.1 Therefore if on an indictment for murder the accused is found guilty of manslaughter and a new trial is granted him, he cannot be put upon his trial again for murder, but only for manslaughter, for the reason that the former verdict amounted to an acquittal of the charge of murder. But a conviction of a lesser offense which is included in a greater cannot be plead in bar of a prosecution for the latter.3

17. What Statutory Offenses Indictable. If an act which is not limited in its effect to private persons or private matters,* but affects the public generally, is prohibited or required to be done by statute, and no punishment is assigned for doing or omitting to do such act, or if a punishment is assigned and no remedy is provided, the willfully doing or omitting to do the act is an indictable offense and punishable as a common law misdemeanor.8 A subsequent statute assigning a particular punishment for the disobedience will not take away the right to proceed by indictment, unless by express negative words or by implication.10 But where the statute creating the offense provides a particular remedy, that remedy alone can be resorted to;" therefore, where a statute creates an offense and prescribes a penalty recoverable by action, this excludes

1 Campbell v. State, 9 Yerg., 333; State v. Kittle, 2 Tyler, 471; Esmon v. State, 1 Swan Tenn., 14; State v. Kattleman, 35 Mo., 105; and see State v. Dark, 8 Blackf., 526; State v. Martin, 30 Wis., 216; State v. Hill., 30 Wis., 417.

Brennan . People, 15 Ills., 517; Barrett v. People, 54 Ills., 330; Hurt v. State, 25 Miss., 378; State v. Martin, 30 Wis., 216.

Severin v. People, 37 Ills., 415; Freeland v. People, 16 Ills., 380; Gard

ner v. People, 20 Ills., 434; contra, see 1 Bish. Cr. L., § 1057.

2 Hawk C., 25, § 4.

* Id.; R. S., 394, § 278.

Rex v. Davis, Sayer, 133; but see State v. Williams, 12 Ind., 172.

'R. S., 394, §278; 1 Whart. Cr. L., § 10.

1 Arch. C. P. & Pl., 3; State v. Fletcher, 5 N. H., 257; Rex. v. Sainsburg,

4 T. R., 451.

Doug., 441, 446; Rex v. Royal, 2 Burr., 831; Rex. v. Balme, Cowp., 648. 101 Arch. C. P. & Pl., 4; Sweeny v. People, 28 Ills., 208.

112 Hawk Ch., 25: §4.

punishment by indictment. A proceeding to collect a penalty for a town ordinance is a civil suit. Such penalty cannot be recovered in any criminal proceeding. The fact that the offense charged was an assault and battery does not change the character of the proceeding: it is still a civil suit. The town only acquires jurisdiction because the offense is prohibited by an ordinance.3

1

1 State v. Maze, 6 Humph., 17; Sweeny v. People, 28 Ills., 208; Carter v. State, 16 Wis., 299; Ewbanks v. Town of Ashley, 36 Ills., 177.

Town of Jacksonville v. Block, 36 Ills., 507; Graubner v. City of Jacksonville, 50 Ills., 87; Hoyer v. Town of Mascoutah, 59 Ills., 138; Hendershot, v. Town of Petersburg, 63 Ills., 111.

'Hoyer v. Town of Mascoutah, 59 Ills., 138.

CHAPTER II.

PROCEEDINGS IN CRIMINAL CASES BEFORE JUSTICES OF THE PEACE.

I. PROCEEDINGS TO PREVENT THE COMMISSION OF CRIMES.

II. ARREST, EXAMINATION, COMMITMENT, And Bail.

1. THE COMPLAINT.

II. THE WARRANT.

III. THE ARREST.

1. UNDER A WARRANT.

2. WITHOUT WARRANT.

3. PROCEEDINGS AFTER THE ARREST.

4. THE RETURN.

IV. THE EXAMINATION.

V. PROCEEDINGS AFTER EXAMINATION.

III. SEARCH WARRANTS.

SECTION I.

PROCEEDINGS TO PREVENT THE COMMISSION OF CRIMES.

§18. Conservators of the Peace.

19. Complaint.

20. Warrant.

21. Examination.

22. When Security Required.

23. When Complaint not Sustained-Costs.

24. Recognizance.

25. Discharge or Commitment.

26. Costs.

27. Appeal.

28. Recognizance of Witnesses.

29. Proceedings on Appeal.

30. Failing to Prosecute Appeal.

31. Discharge on Recognizance after Commitment.

32. Recognizance Returned to Circuit Court

33. Conviction not Necessary.

34. Breach of Peace in Presence of a Court or Magistrate.

35. Court may Remit Part of Penalty.

26. Sureties may Surrender Principal.

$37. Principal may again Recognize.

38. Amendments.

39. Preventing Prize Fighting.

$18. Conservators of the Peace. "All judges of courts of record within their respective jurisdictions, and justices of the peace in their respective counties, are conservators of the peace, and shall cause to be kept all laws made for the preservation of the peace, and may require persons to give security to keep the peace, or for their good behavior, or both, as provided by this act.""

$19. Complaint." When complaint is made to any such judge or justice of the peace that a person has threatened or is about to commit an offense against the person or property of another, he shall examine on oath the complainant and any witness who may be produced, and reduce the complaint to writing, and cause it to be subscribed and sworn to by the complainant."

FORM OF COMPLAINT FOR USING THREATS AGAINST A PERSON. State of Illinois,

}

Adams County. S

SS.

A. B., being duly sworn (or "affirmed") and examined on oath (or "affirmation") before Levi Mason, a justice of the peace in and for said county, complains, and says that on the 10th day of July, A. D. 1874, at the town of Mendon in the said county, C. D. did unlawfully threaten to commit an offense against the person or property of the said A. B., to wit: that he would beat ("wound,” “maim," "shoot," or "kill") the said A. B. (or “would burn and destroy the dwelling of him, the said A. B.”)

And E. F., being duly sworn and examined by me on his oath, says that on the day of- A. D. 18, at the residence of James Smith, in the said town of Mendon, he heard the said C. D. threaten to beat the said A. B., and that he, this deponent, has at various times and on divers occasions within the last three months heard the said C. D. swear that he would beat the said A. B. (These statements must of course be varied according to the facts.")

Taken, subscribed and sworn

to before me this day of

A. D. 18-.

A. B.

E. F.

L. M., J. P.

'R. S., 398, § 319; Hamilton v. Stewart, 59 Ills., 331.

2 R. S., 398, § 320.