State v. Reynolds , 5 Tenn. 110 ( 1817 )

Pee Cubiam.

Reynolds was indicted of perjury, and the cause having been removed for trial to Sumner Circuit Court, was tried there. Evidence was rejected which the solicitor thought should have been received. The jury found the defendant not guilty, and the solicitor appealed in behalf of the State to this court. This court is of opinion that the evidence so rejected ought to have been received. But we are also of opinion that a writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of the common law that no one shall be brought twice into jeopardy for one and the same offense. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule; it is that a new trial cannot be granted in a criminal case where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. This is a rule of such vital importance to the security of the citizen, that it cannot be impaired but by express words, and none such are used in the act of 1809, ch. 49, § 26. The acts of 1794, ch. 1, §§ 45, 68, relate to appeals from the Court of Pleas and Quarter Sessions to the Superior Court, and do not,apply here. Neither does the Constitution, article 11, § 10, for here the punishment does not extend to life or limb. The whole of this case rests upon the common law rule, and no legislative provision applies to .it but the act of 1809, ch. 49, § 26, .and certainly the words there used do not embrace the case. “Writs of error shall lie from the respective Circuit Courts to the Courts of Errors and Appeals, and it shall be the duty of the judge, on application, to grant such writ of error, and to make good and sufficient security from the party demanding the same, that the said party shall prosecute his writ to * effect, and answer all damages and costs, if he fail to make his plea good.” ■ Who is to give bond for the State ? Who is to sue the State on it if broken, and in what court ? And how are these damages for a failure to be recovered ? These inquiries show clearly that civil suits, and not criminal prosecutions, with appeals upon them, by the State, are intended. But indeed it is sufficient for the purpose of this determination that such appeal is not given in any clear and precise terms, without which it is not to be presumed that a rule of so much consequence to the welfare of the people was meant by the Legislature to be discontinued. It is our duty as faithful expositors of the law, to preserve it from all encroachment by implication or construction, for in so doing we guard the honor and the peace of our countrymen. And it is our duty to see that no law can effect its dissolution, but one expressed in the most plain and unequivocal terms; such as cannot be turned by construction to any other meaning.

We have no jurisdiction over this appeal, and it must be dismissed from our docket.

See Martin v. McNight, 1 Tenn. 334; King’s Digest, 4606.