the second indictment, averring the identity of the offences, and to this plea there was a replication that the offences were different. The prisoners' counsel put in the commitment and the former indictment, and also the minutes of the former acquittal written on the indictment. On this evidence the jury found that the offences were the same; and it being referred for the opinion of the judges whether there was any evidence to justify and support the verdict, and if not, whether such verdict was final, and operated as a bar to any further proceedings by the crown upon the second indictment, the court held, that the verdict of the jury was final, and the prisoners were discharged. d Form of conclusion of replication to plea. - Wherever the offences charged in the two indictments are capable of being legally identified as the same offence by averments, it is a question of fact for a jury to determine whether the averments be supported, and the offences be the same. In such cases the replication ought to conclude to the country. But when the plea of autrefois acquit upon its face shows that the offences are legally distinct, and incapable of identification by averments, as they must be in all material points, the replication of nul tiel record may conclude with a verification. In the latter case, the court, without the intervention of a jury, may decide the issue.e Where replication is fraud. Where the former conviction was effected by fraud, the plea of autrefois convict, in such case, being replied to specially, the replication, which sets forth such fraudulent prosecution and conviction being well drawn, is a sufficient answer to the defendant's plea, and should be adjudged good on demurrer.ƒ - § 571. Cases of practice under plea and replication. — To an indictment for larceny in a dwelling-house, the defendant pleaded a former conviction of pilfering, on a complaint before a police court, averring that the articles and the stealing mentioned in It d R. v. Parry, 7 Car. & P. 836. evidence; therefore, the court may Ante, § 562 a. charge the jury that the pleas are not sustained by the proof when that is the fact. Martha v. State, 26 Ala. 72; see Foster v. State, 39 Ala. 22); State v. flayces, 36 Vt. 667. e Hite v. State, 9 Yerger, 357. is the duty of the court to declare the legal effect of a record which is of ered to sustain the plea of autrefois acquit or discontinuance, and the record itself cannot be gainsaid by parol f Com. v. Jackson, 2 Virg. C. 501 ; State v. Brown, 16 Conn. 54. the indictment were the same mentioned in said complaint, and that the police court had jurisdiction of the offence. The replication averred that the stealing charged in the said complaint was a larceny in the dwelling-house, which was a high and aggravated crime, and that the police court had not jurisdiction thereof. The rejoinder traversed the several averments in the replication. It was held, on special demurrer, that the rejoinder was good, being neither a departure, nor double, and that though the plea was defective in form, for not directly traversing the charge of larceny in a dwelling-house, yet that the defect was cured by the pleading over.g The proper plea would have been former conviction of the larceny, and not guilty of the residue of the charge.h A party being indicted for a misdemeanor, pleaded a former acquittal, but his counsel could not find the record, nor could the solicitor general find the former indictment. The court ordered the trial to proceed, and the prisoner was found guilty. Afterwards the former indictment and record of acquittal were found, the two indictments being identical, with the exception that in the former the offence was charged on the 1st of June instead of May, and the words "a wagoner" were added to the description of a negro. It was held that there could be no doubt of the identity of the offence, and a new trial must be granted notwithstanding the laches of counsel. i Where, to an indictment, the defendant pleaded autrefois convict, and not guilty, which pleas were both submitted to the jury at the same time, and the jury found a verdict of guilty, but rendered no verdict on the first plea, a judgment entered on the verdict was held erroneous.j In Massachusetts, by Gen. Stat. 1864, c. 250, § 4, it is sufficient in autrefois acquit or convict to set forth simply a prior lawful acquittal or conviction. § 572. (y.) Judgment on a plea of autrefois acquit.— When the plea of autrefois acquit or convict is determined against the defendant, in this country in most cases he is allowed to plead over, and to have his trial for the offence itself. In England, g Com. v. Curtis, 11 Pick. 134. h Ibid. i Dacy v. State, 17 Geo. 439. Penn. State R. 14. See this point fully discussed, ante, § 530 a. 1 Barger. Com. 3 Penrose & Watts, j Soliday v. Com. (4 Casey) 28 262; Com. v. Goddard, 13 Mass. 455; VOL. 1.-30 Foster v. Com. 8 Watts & S. 77; Hirn 465 however, though this is allowed in felonies, it is not in misdemeanors. m Of the injustice of this distinction a pregnant illustration is found in a case which, in 1850, attracted great attention in England.n On the plea of autrefois acquit to an assault, issue was taken by the crown, and after verdict, judgment entered against the prisoner, who was thereupon sentenced to hard labor for two years. In pronouncing sentence, Martin, B., did not hesitate to express his compunctions at sentencing a man for an offence for which he was never tried. "I cannot but feel," he said, addressing the prisoner, "that you stand in the condition of persons whose case has not been heard. If you wish me to postpone the sentence, I will do so. I feel it to be a great hardship that the prisoners should be punished without a trial, and with no opportunity given to them of answering or explaining the charge laid against them." It was the hardship of a judge thus sentencing a man of whose guilt he knew nothing, that led Judge Grier and Judge Kane, in the U. S. circuit court in Philadelphia, to decline sentencing a man who had been convicted capitally before Judge Randall, the district judge, who since the conviction and the application for sentence had died. p This difficulty, however, has not deterred the supreme court of New York from holding that where, in an inferior tribunal, judgment against the people had been entered on a demurrer, on reversing the judgment, they would not permit the defendant to withdraw his demurrer, but would sentence him themselves. q Where the state demurs to the plea of autrefois convict to an indictment for a capital felony, and the demurrer is overruled, the defendant is not entitled to be discharged, and the state may rejoin. r In cases, where the defendant pleads over to the felony at the same time with the issue in the plea of autrefois acquit, the jury are charged again to inquire of the second issue, and the trial proceeds as if no plea in bar had been pleaded. 8 v. State, 1 Ohio St. R. 16. See ante, § 528-9, 530 a. m R. v. Gibson, 8 East, 107; R. v. Taylor, 3 B. & C. 502; S. C. 5 Dow. & R. 422. See fully, ante, § 530 a. n R. v. Bird, 15 Jur. 193; 2 Eng. L. & E. R. 448; 2 Den. C. C. 94; 5 Cox C. C. 20; ante, § 528. o Ibid. 531. p U. S. v. Harding, 6 P. L. J. 14. q People v. Taylor, 3 Denio, 91. See State v. Green, 16 Iowa, 239; and see ante, § 528. r State v. Nelson, 7 Ala. 610; ante, § 528. 8 R. v. Vandercomb, 2 Leach, 708; R. v. Cogan, 1 Leach, 448; R. v. Sheen, 2 C. & P. 635; ante, § 530 a. A novel assignment is not admissible in a criminal case, and the proper and only mode of replying to a plea of a former conviction is to traverse the alleged identity. t 6. Once in Jeopardy. u § 573. (a.) Constitutional provision. By the Constitution of the United States it is provided: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb;" and the same restriction, taken from the federal constitution, exists in the constitutions of most of the states. Whether this amounts to anything more than the common law doctrine in volved in the plea of autrefois acquit, has been much doubted. What that doctrine is has been already stated. It is founded, to adopt the summary of Mr. Chitty, upon the principle that no man shall be placed in peril of legal penalties more than once upon the same accusation. w It has, therefore, been generally agreed, that where a man has once been pronounced "not guilty" on a valid indictment or appeal, he cannot afterwards be indicted again upon a charge of having committed the same supposed offence. At common law, as has been seen, it means nothing more than that when there has been a final verdict, either of acquittal or conviction, on an adequate indictment, the defendant cannot a second time be placed in jeopardy for the particular offence; and at the first glance the constitutional provision appears nothing more than a solemn asseveration of the common law maxim.y In the leading cases of Richard and William Vaux, reported in 4 Coke, 44, it was held, "that the reason of autrefois acquit was because the maxim of the common law is, that the life of a man shall not be twice put in jeopardy for one and the same offence; and that is the reason and cause why autrefois acquitted or convicted of the same offence is a good plea; yet it is intended of a lawful acquittal or conviction, for if the conviction or acquittal is not lawful, his life was never in jeopardy; and because the indictment in this case was insufficient, for this reason, he was not legitimo modo act Duncan v. Com. 6 Dana, 295. 2 Hawk. c. 35, s. 1. Post, § 591, 3168, u See, for plea of "Once in Jeop- 3305. ardy," Wharton's Prec. 1157. See, also, this subject further examined, post, § 3168, 3305. v Const. U. S. Amend. art. 5. x 2 Hawk. c. 35, s. 1; 4 Bla. Com. 335. For English rule, see post, § 591. y Ned v. State, 7 Porter, 188; U. S. v. Gibert, 2 Sumner, 41. quietatus," &c. "Thus we see," says Mr. Justice Story, in commenting on this case, "that the maxim is imbedded in the very elements of the common law; and has been uniformly construed to present an insurmountable bar to a second prosecution, where there has once been a verdict of acquittal or conviction regularly had upon a sufficient indictment. z § 574. (b.) Construction given by the several courts. — In this country, the constitutional provision has, in some instances, been construed to mean more than the common law maxim, and in several of the states it has been held that where a jury in a capital case has been discharged without consent before verdict, after having been sworn and charged with the offence, the defendant, under certain limitations, may bar a second prosecution by a special plea setting forth the fact that his life has already been put in jeopardy for the same offence. a The cases may be placed in two general classes: First. Where any separation of the jury, except in case of such violent necessity as may be considered the act of God, is held a bar to all subsequent proceedings. Secondly. Where it is held that the discharge of the jury is a matter of sound discretion for the court, and that when, in the exercise of a sound discretion, it takes place, it presents no impediment to a second trial. b § 575. The first view has been taken by the courts of Pennsylvania, Virginia, North Carolina, California, Tennessee, and, to a certain extent, of Alabama. Pennsylvania. In 1822, the question was brought before the supreme court of Pennsylvania (a state whose constitution contains a provision precisely the same as that in the Constitution of the United States), in a case where the defendant pleaded specially, that the jury had been discharged on a former trial because they were unable to agree. The court held, that the discharge of the jury, because they could not agree, was unlawful, and was not a case of necessity within the meaning of the rule on the subject. Chief Justice Tilghman said, where a party "is ≈ U. S. v. Gibert, 2 Sumner, 42. See, for a learned article on this head, 4 Western Law Journal, 97. a William's case, 2 Grat. 567; Com. v. Cook, 6 S. & R. 577; Com. v. Clue, 3 Rawle, 498; State v. Garrigues, 1 Hayw. 241; Spier's case, 1 Devereux, 491; Ned v. State, 7 Porter, 187. b For a discussion of the general question how far a jury may be allowed to separate, see post, § 3111, &c. |