State v. Kent

(concurring).

I concur in the principal opinion. However, instead of limiting disposition of the claim of double jeopardy to determination that the federal constitutional error in that regard, if any, is harmless beyond a reasonable doubt, I would also expressly hold that there was no double jeopardy because the trial court had no jurisdiction to make an adjudication under § 552.040, on December 7, 1971. This is true because the trial court found Kent incompetent to stand trial on that date, and having done so, could proceed only under § 552.020 and had no jurisdiction to make an adjudication under § 552.040. As noted in the principal opinion, the Supreme .Court of the United States in the case of United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896) said:

“An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offence [sic].”