RODNEY, Judge

Clarence Boyles was convicted of operating a motor vehicle under the influence of intoxicating liquor, and he appeals and files special plea alleging former jeopardy.

Motion of state to strike out plea of former jeopardy granted.

RODNEY, J., sitting.

P. Warren Green, Atty. Gen., and William J. Storey, Deputy Atty. Gen, for the State.

Thomas Clayton Frame, Jr., of Dover, for defendant.

Court of General Sessions for Kent County, October Term, 1935.

The defendant was originally arraigned, tried and convicted before a justice of the peace on a warrant for operating a motor vehicle under the influence of intoxicating liquor and the Record showed all the proceedings as "Town of Smyrna v. Clarence Boyles." The judgment was reversed on certiorari proceedings wherein one of the exceptions was that the proceedings should have been in the name of the State of Delaware, pursuant to article 4, § 35, of the Constitution of Delaware which provides:

"The style in all process and public acts shall be the State of Delaware. Prosecutions shall be carried on in the name of the State."

Subsequent proceedings were had in the name of the State of Delaware and the Record so appeared, and the defendant was again convicted. From this conviction the defendant has appealed to this Court and, to the information, has filed a special plea alleging the former jeopardy of the defendant under the former proceedings.

RODNEY, Judge, delivering the opinion of the Court.

In Town of Dover v. Tawressey, 2 Marv. (16 Del.) 285, 43 A. 170, 172, it was held that criminal prosecutions for violations of State statutes must be conducted in the name of the State of Delaware and not in the name of a municipality. In that case, because the prosecution had been in the name of the municipality and not of the State of Delaware, the Court held:

"The hearing, judgment, fine, and imprisonment in such name were unauthorized and illegal, and the judgment must therefore be reversed."

Upon the authority of the cited case and upon certiorari proceedings instituted by the defendant, the Court held the former proceedings in the present case to be erroneous.

While some text writers and a few Reports, by their definitions, limit their discussion of jeopardy to a second prosecution after a verdict by a jury, yet the great weight of authority sanctions the view that a defendant may be put in jeopardy before a competent Court legally sitting without the intervention of a jury, and especially where the defendant has no legal right to demand a jury trial. Kepner v. U. S., 195 U. S. 100, 24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655; Wemyss v. Hopkins, L. R. 10 Q. B. 378. See, also, cases cited in 16 C. J. 245.

The offence of operating a motor vehicle while under the influence of intoxicating liquor is, in Delaware, a statutory offence within the jursidiction of a justice of the peace without a jury (Rev. Code 1915, § 239).

A void or invalid judgment will not, ordinarily, sustain a plea of former jeopardy. It is unnecessary to consider the extent of this rule, for it is particularly effective and true when the defendant has set in motion the proceedings by which the former conviction is nullified. It is universally true that an accused is estopped to plead a prior conviction where that prior conviction has been reversed, for error, upon proceedings brought by the accused himself. 2 Wharton's Criminal Procedure (10th Ed.) § 1447; 1 Cooky's Const. Lim. (8th Ed.) 691; Murphy v. Massachusetts, 177 U. S. 155, 20 S. Ct. 639, 44 L. Ed. 711; Morrisette v. State, 77 Ala. 71. See 16 C. J. 262, and cases there cited.

Because the defendant successfully proved to the Court that in the former proceedings there was not and could not have been any valid or binding judgment, so I must hold that no jeopardy attached to him in those abortive proceedings. Hall v. State, 3 W. W. Harr. 233, 134 A. 692.

The motion of the State to strike out the plea of former jeopardy is granted.