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abatement, as of

ecution, as if convicted by verdict. But this is denied by others (f), who hold, that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him. Which appears the more reasonable, because it is clear, that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court, whether it be felony or no; and upon the fact thus shewn it appears to be felony; the court will not record the confession, but admit him afterwards to plead not guilty (g). And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and though a man by mispleading may, in some cases, lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used : since the same advantages may be taken upon a plea of not guilty; or afterwards in arrest of judgment, when the verdict has established the fact.

III. A plea in abatement is principally for a misnomer, a III. A plea in wrong name, or a false addition to the prisoner. As, if misnomer; James Allen, gentleman, is indicted by the name of John dilatory pleas, Allen, esquire, he may plead that he has the name of James, with little adand not of John ; and that he is a gentleman, and not an esquire. And, if either fact is found by a jury, then the *in- *3351 dictment shall be abated, as writs or declarations may be in civil actions ; of which we spoke at large in the preceding volume (h) (4). But, in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas : because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he, who takes advantage of a flaw, must at the same time shew how it may be amended. Let us therefore next consider a more substantial kind of plea, viz.

IV. Special pleas in bar ; which go to the merits of the iv. Special pleas indictment, and give a reason why the prisoner ought not to "" answer it at all, nor put himself upon his trial for the crime (1) 2 Hawk. P. C. 334. (g) 2 Hal. P. C. 225. (h) See vol. III. p. 302.

these are merely

and attended

vantage.

wat min bar, which are

(4) But, now, such plcas are wholly useless ; vide 7 Geo. IV. c. 64, S 19;

set out, ante, 306, note (6),

1, Autrefois ac. quit,

alleged. These are of four kinds: a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas, which may be pleaded in bar of an appeal (i): but these are applicable to both appeals and indictments.

1. First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon an indictment, or other prosecution, before any court having competent jurisdiction of the offence (j), he may plead such acquittal in bar of any subsequent accusation for the same crime (5). Therefore an acquittal on an appeal is a good bar to an indictment on the same offence. And so alsó was an acquittal on an indictment a good bar to an appeal, by the common law (k): and, therefore, in favour of appeals, a general practice was introduced, not to try any person on an indictment of homicide, till after the year and day, within which appeals may be brought, were past: by which time it often happened that the witnesses died, or the whole was forgotten. To remedy which inconvenience, the statute 3 Hen. VII. c. 1, enacts, that *indictments shall be proceeded on, immediately at the king's suit, (i) 2 Hawk. P. C. ch. 23.

(k) 2 Hawk. P. C. 373. ( ) 3 Mod. 194.

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(5) But such a plea must be strictly regular both in form and substance; for, in cases of misdemeanor, if it is held bad on demurrer, final judgment may be entered up against the defend ant; Rex v. Taylor, 5 D. & R. 422; 3 B. & C. 502; post 338, note (9). And if it is irregularly pleaded, and the acquittal which it sets forth appears to have been obtained by collusion, the court will strike the plea off the file; Rer v. Taylor, 5 D. & R. 521 ; 3 B. & C. 612. A plea of autrefois acquit cannot be pleaded unless the facts charged in the second indictment, would, if true, have sustained the first; Rer v. Vandercomb, 2 East, P. C. 519. If, in a plea of autrefois acquit, the prisoner were to insist on two distinct re

cords of acquittal, his plea would be bad for duplicity. But semble, that if he insisted upon the wrong, the court would, in a capital case, take care that he did not suffer by it ; Rer v. Sheen, 2 C. & P. 635. And if the prisoner could have been legally convicted on the first indictment upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indict. ment; and it is immaterial whether the proper evidence was adduced at the trial of the first indictment or not; Id. ibid. A prisoner indicted for felony may plead not guilty after his special plea of autrefois acquit has been found against him ; Rer v. Welch, Car. Cr. L. 56.

convict, both

on a prosecution

identical act;

for the death of a man, without waiting for bringing an appeal ; and the plea, of autrefois acquit on an indictment, shall be no bar to the prosecuting of any appeal.

2. Secondly, the plea, of autrefois convict, or a former and 2, Autrefois conviction for the same identical crime, though no judgment which must be was ever given, or perhaps will be, being suspended by the for the same benefit of clergy or other causes, is a good plea in bar to an indictment (6). And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime (1). Hereupon it has been held, that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment, of murder ; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. It is to be observed, that the pleas of autrefois acquit and autrefois convict, or a former acquittal, and former conviction, must be upon a prosecution for the same identical act and crime. But the case is otherwise, in

(1) 2 Hawk. P. C. 377.

(6) Where a party has been tried at a court of quarter sessions, which has previously lapsed for want of due adjournment, he has a right to have a record of the proceedings made up by the clerk of the peace, although the object of the application is to enable him to support a plea of autrefois convict ; Rer v. Justices of Middleser, 3 Nev. & Man. 110.

The court will not reject a plea of autrefois convict, on account of the informal manner in which it is handed in by the prisoner; but will assign him counsel to put it into a formal shape, and postpone the trial, to give time for its preparation; Rex v. Chamberlain, 6 C. & P. 93.

A plea of autrefois convict can only be proved by the record ; and the indictment, with the finding of the jury, &c., indorsed by the proper officer, is not sufficient, although it appears that no record has been made up. But the court, before whom the prisoner is brought to be tried the second time, will postpone the trial at the request of

the prisoner, on affidavit of the fact, to
give time for an application for a man-
damus to compel the making up of the
record; Rer v. Bowman, 6 C. & P.
101.

A plea of autrefois convict stated
that the prisoner was indicted, convicted,
and sentenced at a session of the peace
duly holden by adjournmont on Friday
the 5th of July. The record produced
in support of the plea stated that the
indictment was found at a session com-
menced and holden on Monday the 1st
of July, and that the court was ad-
journed till Tuesday the 2nd ; and that
the court, having re-assembled on Thurs.
day the 4th, was adjourned to Friday
the 5th, when the prisoner was tried and
convicted : It was held that the plea
was not proved by the record, because,
for the want of an adjournment from
the Tuesday to the Thursday, the pro-
ceedings on the Friday were coram non
judice and a nullity ; Rer v. Bowman,
6 C. & P. 337.

taint, which

to any charge of felony, with some exceptions;

3:Autrefois at. 3. Thirdly, the plea of autrefois attaint, or a former may be pleadedattainder ; which is a good plea in bar, whether it be for the

same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by abjuration; and whether upon an appeal or an indictment; he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony (m). And this because, generally, such proceeding on a second prosecution cannot be to any purpose; for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had : so that it is absurd and superfluous to endeavour to attaint him a second time. But to this general rule, however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex. As,

1. Where the former attainder is reversed for error, for then [*337] it *is the same as if it had never been. And the same reason

holds, where the attainder is reversed by parliament, or the judgment vacated by the king's pardon, with regard to felonies committed afterwards. 2. Where the attainder was upon indictment, such attainder is no bar to an appeal : for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject, by suffering the prior sentence to stop the prosecution of a second, and then, when the time of appealing is elapsed, granting the delinquent a pardon. 3. An attainder in felony is no bar to an indictment of treason : because not only the judgment and manner of death are different, but the forfeiture is more extensive, and the land goes to different persons. 4. Where a person attainted of one felony, is afterwards indicted as principal in another, to which there are also accessaries, prosecuted at the same time; in this case it is held, that the plea of autrefois attaint is no bar, but he shall be compelled to take his trial, for the sake of public justice : because the accessaries to such second felony cannot be convicted till after the conviction of the principal (n). And from these instances we may collect that the plea of autrefois attaint is never good, but when a second trial would be quite superfluous (o) (7).

(m) 2 Hawk. P. C. 375. (n) Poph. 107. (o) Staund. P. C. 107.

(7) By the 7 & 8 G. IV. c. 28, § 4, it is enacted that no plea setting forth

which should be

sentence past.

4. Lastly, a pardon may be pleaded in bar; as at once 1, Pardon, destroying the end and purpose of the indictment, by re - pleaded before mitting that punishment, which the prosecution is calculated to inflict (8). There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is past; which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment it stops the attainder, and prevents the corruption of the blood : which, when once corrupted by attainder, cannot afterwards be restored, otherwise than by Act of Parliament. But, as the title of pardons is applicable to other stages of prosecution; and they have their respective force and efficacy, as well after as before conviction, outlawry, or *attainder; I shall therefore reserve the more minute con- [*338) sideration of them, till I have gone through every other title except only that of execution.

Before I conclude this head of special pleas in bar, it will the prisoner is be necessary once more to observe, that, though in civil by any of these actions when a man has his election what plea in bar to make, he is concluded by that plea, and cannot resort to another if that be determined against him; as if, on an action of debt the defendant pleads a general release, and no such release can be proved, he cannot afterwards plead the general issue, nil debet, as he might at first: for he has made his election what plea to abide by, and it was his own folly to choose a rotten defence; though, I say, this strictness is observed in civil actions, quia interest reipublicæ ut sit finis litium: yet in criminal prosecutions in favorem vitæ, as well upon appeal as indictment, when a prisoner's plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court; still he shall not be concluded or

not concluded

pleas.

any attainder, shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment: by which enactment the plea of autrefois attaint seems to be at an end.

(8) But a proclamation promising a pardon cannot be pleaded as a pardon; Rer v. Garside, 4 Nev, & Man. 33.

But where such a proclamation had been made, the Court of King's Bench, in their discretion, deferred awarding

execution upon a sentence of death,
until the prisoner should have had time
to apply to the Secretary of State for a
pardon, according to the terms of the
proclamation ; id, ibid.

Semble, that a pardon after judgment
may be pleaded ore tenus, and in bar of
execution, and that there may be a de-
murrer to such a plea ore tenus; id. ibid.

See further upon the subject of pardon, post, 398.

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