State v. Jackson

The opinion of the court was delivered by

Provosty, J.

A first conviction of defendant having been set aside on the ground that the trial had been before the judge, when the case was one in which, under the Constitution, jury could not be waived; and the defendant having been brought to trial a second time, he pleaded once in jeopardy, basing himself on the first trial. It is very plain that since the first trial could not possibly have resulted in a *414legal conviction, the defendant was not by it put in jeopardy. For jeopardy to exist the court must be competent to try the case. Am. & Eng. Ency.…