Horace Gray

“ In England an acquittal upon an indictment so defective that if it had been objected to at the trial, or by motion in arrest of judgment, or by writ of error, it would not have supported any conviction or sentence, has generally been considered as insufficient to support a plea of former acquittal. ”

“ This case, in short, presents the novel and unheard-of spectacle of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first. ”

“ If a conviction take place, whether an indictment be good or otherwise, it is ten to one that judgment passes; for, if he read the bill, it is not probable he will have penetration enough to discern its defects. ”

“ The foundation of that doctrine is Vaux's Case, 4 Coke, 44, in which William Vaux, being duly indicted for the murder of Nicholas Ridley by persuading him to drink a poisoned potion, pleaded a former acquittal, the record of which set forth a similar indictment alleging that Ridley, not knowing that the potion was poisoned, but confiding in the persuasion of Vaux, took and drank (without saying 'took and drank said potion') ; a plea of not guilty; a special verdict finding that Ridley was killed by taking the poison, and that Vaux was not present when he took it ”

“ The circuit court, among other instructions, instructed the jury to find against both pleas of former jeopardy, because this court had decided that the former indictment was insufficient as an indictment for murder. The jury returned a verdict of guilty of murder against all three defendants. Each of them was adjudged guilty, accordingly, and sentenced to death, and thereupon they sued out this writ of error. ”

“ Millard F. Ball's acquittal by the verdict of the jury could not be deprived of its legitimate effect by the subsequent reversal by this court of the judgment against the other defendants upon the writ of error sued out by them only.
It is true that the verdict finding John C. Ball and Robert E. Boutwell guilty as charged in the indictment, and finding Millard F. Ball not guilty, was returned on Sunday ”

“ But the indictment alleged that the defendants, in Pickens county, in the Indian Territory, on June 26, 1889, by shooting with a loaded gun, inflicted upon the body of Box 'a mortal wound, of which mortal wound the said William T. Box did languish, and languishing did then and there instantly die.' It was thus distinctly and unequivocally alleged that Box died of the mortal wound alleged to have been inflicted by the defendants, and that he died at the time and place at which the mortal wound was inflicted. ”

“ Mass. 1836, c. 123, §§ 4, 5, provisions were inserted which, as the commissioners who reported them said, were 'intended to define and determine, as far as may be, the cases in which a former acquittal shall or shall not be a bar to a subsequent prosecution for the same offense,' and were as follows: 'No person shall be held to answer on a second indictment, for any offence of which he has been acquitted by the jury upon the facts and merits, on a former trial ”

“ United States
At October term, 1889, of the circuit court of the United States for the Eastern district of Texas, the grand jury returned an indictment against Millard Fillmore Ball, John C. Ball, and Robert E Boutwell for the murder of William T. Box ”