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§ 38. DECLINATORY PLEAS.

These pleas are unknown to the law of our State. They were of two kinds: the privilege of sanctuary, which was abolished in the reign of James the First,1 and second, the plea of benefit of clergy.

§ 39. OF PLEAS IN BAR OF THE INDICTMENT.

Of these are the pleas of autrefois acquit, autrefois convict and autrefois attaint. These pleas are commonly known under the name of the plea of former jeopardy. They show, by matter extrinsic of the record, that the indictment should not be maintained.

The prisoner, in taking advantage of a former jeopardy, brings the fact to the attention of the court by two pleas in bar known to the common law; the one of which is produced when the jeopardy has resulted in a conviction, and is called the plea of autrefois convict; the other of which is brought forward when the jeopardy has resulted in an acquittal, and is called the plea of autrefois acquit.2

That the defendant was formerly indicted and acquitted is a good plea in bar to a subsequent indictment for the same offence,3 for the law will not suffer a man to be twice put in jeopardy for the same offence.1

This principle is sanctioned and enforced in different forms of words in most of the constitutions of the several States and in the constitution of the United States.5

The maxim that a man ought not to be brought twice into danger, Justice STORY remarks, is embodied in the very elements of the common law, and has been uniformly construed to present an insurmountable barrier to a second prosecution where there has once been a verdict of acquittal or conviction regularly had upon a sufficient indictment."

Even an erroneous acquittal is conclusive until the judgment is reversed, so that if a judge direct the jury to acquit the prisoner

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21 Jac., 1, ch. 28.

Bish, Cr. Pro. 572.

* 2 Hale, 241-242; 2 Hawk., P. C., ch. 3, § 1.

Id.; Hale, 241, 242; 2 Hawk. P. C., ch. 35, § 1.

* 5th art. of amendts., Const. U. S.; Const. N. Y., art. 1, § 6; notes to

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on any ground, however fallacious, he is entitled to the benefit of the verdict.1

If a man be acquitted on an indictment for murder, he cannot afterwards be indicted for manslaughter of the same person, for he might have been convicted of manslaughter on the former indictment.2

The issue joined upon a special plea of a former trial, can only be tried by a jury: the consent of a defendant cannot confer jurisdiction upon the court to try the issue without a jury.3

The form of the pleas of both autrefois convict and autrefois acquit given in the appendix, will afford much instruction concerning the practice in interposing a defence of this description.

If judgment be given in favor of the defendant, it is that “he go thereof without day," and if the issue be found against the defendant, it is that he answer over to the felony, if such be the nature of the indictment, or in the case of a misdemeanor that he receive judgment for the offence.1

And in cases of felony, where he pleads over at the same time with the plea of autrefois acquit, the jury are charged again to inquire of the second issue.5

It seems to be doubted, whether in cases of misdemeanor, the defendant might plead over by leave of the court.

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In cases where a plea of autrefois acquit is interposed, if the indictment be for a felony, the defendant should also plead over to the felony."

But if the defendant plead autrefois acquit without pleading over to the felony, after his special plea is found against him, he may still plead over to the felony.8

Where the plea of not guilty is tendered at the same time with that of a previous acquittal, the defendant cannot have both issues

1 State v. Norvell, 2 Gerger, 24.

2 Hale, 246.

Grant v. Peo., 4 Park., 527.

2 Gob. Cr. L., 336; Peo. v. Saunders, 4 Park., 196; 1 Arch. Cr. Pr., 113; 2 Hale, 253–257; 2 Hawk. ch. 36; R. v. Scott, 1 Leach 401; R. v. Bowman, 6 C. and P., 337; R. v. Goddard, 2 Ld. Raym., 920. But see 13 Mass., 455; 8 Watts & Serg., 77.

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2 Hawk. P. C., ch. 23, § 128; Rex v. Sheen, 2 Car. and P., 634; 13 Mass.,

submitted to the jury at once, but the court will order the special plea to be passed on first.1

A former acquittal or conviction must be availed of by this plea, it cannot be availed of on motion in arrest of judgment." The plea of autrefois acquit is of a mixed nature, and consists partly of matter of record and partly of matter of fact. The matter of record, is the former indictment and acquittal; the matter of fact, is the averment of the identity of the offence, and of the person as having been formerly indicted.3

To sustain the plea of autrefois convict, no judgment sentenc ing the prisoner need have been pronounced on the verdict. But to sustain the plea of autrefois acquit, it is necessary that the defendant should produce a record of acquittal.5 And the plea should set out the record of the former conviction or acquittal, and allege that the two offences are the same, and that the defendant in the former suit is the same person who is the defendant in the latter suit.6

As to the identity of the offence, if the crimes charged in the former and present prosecution are so distinct that evidence of the one will not support the other, it is inconsistent with reason as it is repugnant to the rules of law, to say that the offences are so far the same that an acquittal of the one will be a bar to the prosecution of the other."

But on the other hand it is clear that if the charge be in truth the same, though the indictments differ in immaterial circumstances, the defendant may plead his previous acquittal, with proper averments, for it would be absurd to suppose that by varying the day, or any other allegation, the precise accuracy of which is not material, the prosecutor could change the rights of the defendant, and subject him to a second trial.8

If one person was indicted singly, he may plead that he was

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• Rex v.

Wildey, 1 M. & S., 183; 5 Rand., 669; 2 East. P. C., 519; 2 Leach, 4th ed., 708; 3 B. & C., 502.

7 2 Leach, 717; 12 Pick., 505.

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Arch. Cr. Pr., vol. 1, § 112, note;

Inst., 318; Hawk. B. 2, ch. 35, § 3; 1

Leach, 448; 2 Hale, 224-247; 13 Mass., 245,

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before indicted jointly with other persons, and on such indictment convicted or acquitted.1

On a plea of autrefois acquit, a jury are sworn instantly to try the cause. The proof of the issue lies upon the defendant.3 To prove it, he has first merely to prove the record, and secondly to prove the averment of indentity contained in his plea.4

Where the second indictment is preferred at the same term, the original indictment and minutes of the verdict are receivable in evidence in support of the plea of autrefois acquit, without a record being drawn up. But where the previous acquittal was at a previous term in the same jurisdiction, or in a different jurisdiction, it can only be proved by the record."

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When the only issue is the identity of the offences, a technical difference between the description of the property in the first indictment and the second will be disregarded.'

It was formerly said that the former indictment, however, must appear to have been a good and valid indictment for the offence, and which might be supported by the same evidence as would support the present one.8

Thus an acquittal upon an invalid and insufficient indictment was no bar to another indictment for the same offence, as if the offence was alleged to have been committed in another district than the one in which the bill was found, or if an impossible date was assigned to the commission of the offence, as a day posterior to the finding of the indictment.9

But it is provided by statute in this State that when a defendant shall have been acquitted of a criminal charge upon trial on the ground of a variance between the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for

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* 2 Hawk., ch. 35, § 8; R. v. Vandercombe, 2 Leach, 708; Vaux's Case, 3 Co., 45; Wigg's Case, 4 Co., 46, b.

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1 Rice, 1; 13 Mass., 245; 9 Yerger, 357; Thatch., C. C., 202; 3 Scammon, 363; 1 Rich., 219; 6 Serg. & R., 577; 3 Rowle, 498; 2 Pick., 521; 1 John. Rep., 66; 12 Pick., 496.

the same offence, and that where a defendant shall have been acquitted upon trial on the merits and facts, and not upon any ground last above stated, he may plead such acquittal in bar of any subsequent accusation for the same offence, notwithstanding any defect in form or substance in the indictment upon which such acquittal was had.1

The statute further provides, that when a defendant shall be acquitted or convicted upon any indictment for an offence consisting of different degrees, as prescribed by the statute, he shall not thereafter be tried or convicted for a different degree of the same offence; nor shall he be tried or convicted for any attempt to commit the offence charged in the indictment, or to commit any degree of such offence.2

To subject a prisoner to a second trial, where a former conviction has been reversed and a new trial ordered by a court of review on the application of the prisoner, is not a violation of the constitutional provision which declares that no person shall be subject to be twice put in jeopardy for the same offence.3

It is said to be clear, however, that if a man be indicted as accessory after the fact and acquitted he may be afterwards tried as a principal, for proof of one will not at all support the other.4

A trial and conviction before a court of special sessions for an assault and battery are no bar to a subsequent indictment for manslaughter, where the person assaulted dies subsequently of the wounds caused by the blows for the inflicting which the complaint for assault and battery was made; a former trial is no bar unless the first indictment was such as the accused might have been convicted upon by proof of the facts set forth in the second indictment. To constitute a bar, the offence charged in both indictments must be identically the same in law as well as in fact.5

And in illustration of the doctrine that, in considering the identity of the offence, it must appear by the plea that the offence charged in both cases was the same in law and fact, the following case is cited: where to an indictment for rape, the prisoner pleaded

1 2 R. S., 762, §§ 34, 35.

2 R. S., 702, § 38.

Peo. v. Ruloff, 5 Park., 77.

1 Hale, 625; 2 Id., 244; Hawk., bk. 1, ch. 35, § 11.

Burns & ano. v. The Peo., 1 Park., Cr. R., 182; vide 1 Park., Cr. R., 445; Id., 338,

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