The defendant in a criminal cause has a right to set up any legal defense which his evidence tends to establish. Among the defenses is that of once in jeopardy, which occasionally arises. The constitutions of the several states, as well as that of the national government, contain the provision, that no person shall be twice put in jeopardy for the same offense. A lawful verdict of acquittal is an absolute bar to a second prosecution for the same offense by the same government. But if a person by the same unlawful act violates the laws of the United States, the laws of the state, and ordinances of a city or village, he may be punished by each; a conviction for one is no bar to the others.1

Jeopardy commences immediately upon the swearing of the jury to try the cause, when all of the preliminary steps have been taken necessary to the trial.2

The unnecessary discharge of the jury, after they have been sworn to try the cause, without the consent of the accused, is equivalent to an acquittal, and hence a bar to a second prosecution.3

So, the reception of a verdict which proves to be a nullity, and the discharge of the jury, are equivalent to an acquittal, and a bar to a second prosecution for the same offense.4

1 Wragg vs. Penn. Tp., 94 Ill., 18;

Robbins vs. People, 95 Ill., 177;

Hughes vs. People, 8 Colo., 536;

Cooley Const. Lim., 199. 2 Weaver vs. State, 83 Ind., 289;

Franklin vs. State, 85 Ga., 570.

3 O'Brien vs. Com 9 Bush. (Ky.), 333 (unlawful discharge of one juror); Adams vs. State, 99 Ind., 244.

4 Hayes vs. State, 107 Ala., 1.