the fact. He must be proved to have done some act to assist the felon personally. But if he employ another person to do so, he will be equally guilty as if he harboured or relieved him himself."* "If two persons are indicted as principals, and one is proved to be only accessory, he must be discharged on this indictment, for, in consideration of law, their offences are quite different. And one indicted as accessory before the fact cannot be convicted upon evidence proving him to have been (principal in the second degree) present aiding and abetting at the fact." "An acquittal on an indictment for having been present aiding and abetting in a felony is no bar to an indictment charging the party as accessory before the fact, because the offences described in the two indictments are distinct in their nature.”‡ * Archbold, 9. † 1 Phillips, 502. 2 Phillips, 26.

CHAP. XIV. ·

OF PLEAS, ETC.

Pleas to be pleaded immediately the Court is sworn. — Plea to the Jurisdiction in Abatement; on the Ground of former Acquittal, or former Conviction. Case of William Maxwell, Boatswain of H. M. S. "Tweed." - Pardon - having been already punished for the Offence.

WHEN a prisoner at a court-martial has any special matter to plead in abatement, or in bar of trial, he should plead it immediately the court is sworn. The pleas of which a prisoner may take advantage in the courts of common law are equally valid at courts-martial.

When the Court hath

Plea to the jurisdiction. no cognizance of the offence, the prisoner may plead to the jurisdiction*; for instance, if a man were charged before a court-martial with robbery, in Her Majesty's dominions on shore, the offence would not be within the jurisdiction of such court: or when the court is not properly constituted according to the provisions of the Act 22 Geo. 2. cap. 33.; or when at the time the offence was alleged to have been committed, the prisoner was not in actual service and full pay in the fleet or ships of war of Her Majesty, &c.

* Archbold, 80.

Plea in abatement. When the charge assigns to the prisoner a wrong name. This plea would be of little avail, for by the stat. 7 Geo. 4. c. 64. s. 19. it is enacted, that no indictment or information shall be abated by reason of any dilatory plea of misnomer, or of want of addition, or of wrong condition, of the party offering such plea; but, in such case, the Court shall forthwith cause the indictment or information to be amended according to the truth, and call upon the party to plead thereto, and proceed as if no such dilatory plea had been pleaded.

If the prisoner be indicted in the name which he bears on the ship's books, and by which he is always called and known in the ship, it is sufficient. To obviate any difficulty on this point, we would recommend, that in one of the muster books (the complete book, for instance), the christian and surname of every officer and man should be written in full, and not abbreviated as is frequently the practice.

On either of the above pleas, if considered to be well founded, it would be the duty of the Court to represent the same to the officer who ordered the court-martial to assemble, so that such corrections might be made in the charges, &c., as would meet the necessities of the case.

Former acquittal.-"When a man is indicted for an offence and acquitted, he cannot afterwards be indicted for the same offence, provided the first indictment were such that he could have been law

fully convicted on it; and if he be thus indicted a second time he may plead 'autrefois acquit,' and it will be a good bar to the indictment."* Thus an acquittal on the ground that the offence charged was committed prior to the date mentioned in the indictment (which would be an erroneous acquittal†), may be pleaded as a bar to an indictment for the same offence, charging it on the right day. At common law, if a man be indicted for any offence, which in the indictment is charged to have been committed on a certain day, he may well be convicted upon that indictment, though the evidence should prove it to have been committed on a different day, the day in an indictment not being material, provided the offence be proved to have been committed before the date specified therein; and therefore if, by any misapprehension of the Judge or the jury, he was acquitted by reason of that variance, he might plead his acquittal to any other indictment for the same offence, although such other indictment charged the offence to have been committed on the right day; and the principle of law which will not suffer a man's life to be in danger twice for the same offence would entitle him to his acquittal again. Greater strictness, we imagine, cannot be required in a charge before a courtmartial than in an indictment at common law.

There are some exceptions to the above rule, as, for instance, in charges founded on letters written by the prisoner, if such letters do not correspond

* Archbold, 87. † Vide Appendix, No. XV.

with the dates specified in the charge, the variance would entitle the prisoner to an acquittal. So, also, where time is of the essence of the offence. And where the time stated must, to substantiate the charges, necessarily be proved, it is imperative that it should be correctly stated.

"An acquittal upon an indictment for murder may be pleaded in bar of another indictment for manslaughter, because the defendant might be convicted of manslaughter on the first indictment." "So an acquittal upon an indictment for manslaughter is, it seems, a bar to an indictment for murder."* But an acquittal upon an indictment before an incompetent court is, in strictness of law, no bar to a subsequent trial before a competent court. An acquittal as accessory is no bar to an indictment as principal; neither can an acquittal as principal be pleaded to a subsequent indictment

as accessory.

Former conviction. Since the passing of the Act 7 & 8 Geo. 4. cap. 28., attainder is no bar, unless for the same offence as that charged in the indictment, and even then, if the trial had taken place before a court not properly constituted, it would, provided no part of the sentence had been carried into execution, be no bar to a new trial before a competent court. In May, 1828, William Maxwell, boatswain of the "Tweed," was tried by court-martial on board His Majesty's ship Maidstone, in Simon's Bay, Cape of Good Hope, and * Archbold, 87. + Ibid. 93.