Lovato v. New Mexico,
242 U.S. 199 (1916)

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U.S. Supreme Court

Lovato v. New Mexico, 242 U.S. 199 (1916)

Lovato v. New Mexico

No. 123

Submitted November 16, 1916

Decided December 11, 1916

242 U.S. 199


In a criminal case tried in a district court of a territory and coming here by way of the supreme court of the state into which the territory was afterwards converted, defenses based on the Fifth and Sixth Amendments (in part not raised until the case reached the latter court) are within this Court's jurisdiction to consider.

Quaere whether, under the Constitution, a defense of former jeopardy is waived if not made before the prosecution has introduced its evidence in chief?

Defendant was arraigned and pleaded not guilty to an indictment for murder; on a day subsequent, without withdrawing the plea, he demurred to the indictment as not charging an offense. The demurrer being overruled, both sides being ready for trial, a jury was duly impaneled and sworn and the witnesses for both sides called and sworn, but, on motion of the prosecuting officer, the court dismissed the jury and directed that the defendant be arraigned anew. This was done forthwith, the accused pleaded not guilty again, and both sides being ready, the same jury was sworn once more and the trial proceeded to a conviction.


(1) Not double jeopardy.

(2) Due process and the right to a jury, under the Fifth and Sixth Amendments respectively, did not require that a new jury be impanelled after the second arraignment and plea.

(3) Under the circumstances, dismissing the jury to allow of the second arraignment and plea, whether a necessary formality or not, was clearly permissible.

17 N.M. 666 affirmed.

The case is stated in the opinion.

Page 242 U. S. 200

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