pel. Matters of law cannot be set up by replication. When the record of the former conviction or acquittal is set out in the plea, the prosecuting officer may join issue by reply nul tiel record if he disputes the fact of the alleged conviction or acquittal;10 but where the record need not be, and is not, set out, nul tiel record is not a good replication.11 Amendment. After joinder in defendant's demurrer to his replication, the prosecuting attorney may withdraw his joinder and amend the replication.12 Error in adding the similiter or in not adding it is amendable.13 Waiver of reply. Where defendant goes to trial without objection to the state's failure to reply to his plea, he waives a formal reply, if it was necessary.14 [769] (6) Evidence. When the guilt of defendant is in question, he is protected by the presumption of innocence;15 but when a former conviction or acquittal is in question he has no such presumption to aid him.16 Therefore, to sustain such a plea, the burden is upon defendant,17 and he must prove not only the former conviction, acquittal, or jeopardy, 18 but also the identity of the parties and of the offenses,19 and the jurisdiction of the Mo.-State v. Wister, 62 Mo. 592; State v. Small, 31 Mo. 197; State v. Andrews, 27 Mo. 267; State v. Heath, 8 Mo. A. 99 [rev on 'other grounds 70 Mo. 565]. N. H.-State v. Buzzell, 58 N. H. 257, 42 AmR 586. [a] Fraud-(1) A plea of autre- | 357. fois convict being replied to specially, and the fraudulent conviction being well set forth in the replication, such replication should be adjudged good on demurrer. Com, v. Jackson, 2 Va. Cas. (4 Va.) 501. (2) A replication to a plea of former conviction before a justice of the peace that the conviction was had by collusion of accused with the prosecutor, and that the justice did not hear the evidence is good. State v. Colvin, 11 Humphr. (Tenn.) 599, 54 AmD 58. [b] A new assignment is not admissible in a criminal case. Duncan v. Com., 6 Dana (Ky.) 295. [c] Writing out reply. It is within the discretion of the court to permit the replication to be written out after the trial on the facts begins. Carter v. State, 107 Ala. 146, 18 S 232. 8. Walkley v. State, 133 Ala. 183, 31 S 854. [a] Arrest of judgment.—A replication to a plea of autrefois convict merely in the words "arrest of judgment" is fatally defective on demurrer; the replication should show that the former indictment was insufficient, or that a conviction lawfully could not have been had under it for the offense charged in, the second. Henry v. State, 33 Ala. 389. 9. Walkley v. State, 133 Ala. 183, 31 S 854. 10. State v. Ackerman, 64 N. J. L. 99, 45 A 27; Terr. v. Donahue, 16 N. M. 17, 113 P 601; Hite v. State, 9 Yerg. (Tenn.) 357; State v. Cross, 44 W. Va. 315, 29 SE 527. [a] The effect of a replication of nul tiel record is to put in issue the question of former acquittal, and not merely to raise the question whether there was a record of acquittal. Com. V. Wermouth, 174 Mass. 74, 54 NE 352. 11. Hite v. State, 9 Yerg. (Tenn.) 357. 12. Com. v. Jackson, 2 Va. Cas. (4 Va.) 501. 13. Berrian v. State, 22 N. J. L. 9 [aff 22 N. J. L. 679]. 14. Com. v. McCauley, 105 Mass. 69; State v. Howe, 27 Or. 138, 44 P 672. 15. See infra § 1006. 16. State v. Scott, 1 Kan. A. 748, 42 P 264. 17. Ala.-Barber v. State, 151 Ala. 56. 43 S 808; Oakley v. State, 135 Ala. 20, 33 S 693; Faulky v. State, 52 Ala. 415. Ariz.-Storm v. Terr., 12 Ariz, 109, 110, 99 P 275 [cit Cyc]. Ark.-Grayson v. State, 92 Ark. 413, 123 SW 388, 19 AnnCas 929: State v. Blahut, 48 Ark. 34, 2 SW 790; Emerson v. State, 43 Ark. 372. Ga-Mance v. State, 5 Ga. A. 229, 62 SE 1053. Ind.-Jenkins v. State, 78 Ind. 133; Cooper v. State, 47 Ind. 61; Marshall v. State, 8 Ind. 498. Ky.-Vowells v. Com., 83 Ky. 193, 7 KyL 176; Chesapeake, etc., R. Co. v. Com., 7 KyL 746. Mass.-Com. V. Wermouth, 174 Mass. 74, 54 NE 352; Com. v. Daley, 4 Gray 209. Miss-Brown v. State, 72 Miss. 95, 16 S 202; Rocco v. State, 37 Miss. [16 C. J.-28] N. J.-State v. Ackerman, 64 N. J. L. 99, 45 A 27. N. M.-Terr. v. West, 14 N. M. 546, 99 P 343. N. Y.-Peo. v. Satchwell, 61 App. Div. 312, 70 NYS 307, 15 N. Y. Cr. 450; Peo. v. Trimble, 60 Hun 364, 15 NYS 60 [aff 131 N. Y. 118, 29 NE 1100]; Peo. v. Cramer, 5 Park. Cr. 171. N. C.-State v. Smith, 170 N. C. 742, 87 SE 98; State v. Freeman, 162 N. C. 594, 598, 77 SE 780, 45 LRANS 977 [cit Cyc, per Clarke, J.]; State v. Ellsworth, 131 N. C. 773, 42 SE 699, 92 AmSR 790. Oh.-Griffith v. State, 93 Oh. St. 294, 112 NE 1017; Bainbridge v. State, 30 Oh. St. 264; Horner v. State, 28 Oh. Cir. Ct. 568 (court does not take judicial notice of former proceedings); Whitman v. State, 27 Oh. Cir. Ct. 735. Pa.-Com. v. Brown, 28 Pa. Super. 296. Philippine.-U. S. v. Webster, 6 Philippine 393. Tex.-Creech v. State, 70 Tex. Cr. 229, 158 SW 277: Jerue v. State, 57 Tex. Cr. 213, 123 SW 414; Kilcoyne v. State, (Cr.) 92 SW 36; Clement v. State, (Cr.) 86 SW 1017; Davidson v. State, 40 Tex. Cr. 285, 49 SW 372, 50 SW 365; Reed v. State, (Cr.) 29 SW 1085; O'Connor v. State, 28 Tex. A. 288, 13 SW 14; Willis State, 24 Tex. A. 586, 6 SW 857; Hozier v. State, 6 Tex. A. 501; Campbell v. State, 2 Tex. A. 187. V. Vt.-State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127; State v. Ainsworth, 11 Vt. 91. Wash.-State v. Williams, 43 Wash. 505, 86 P 847. Eng. Reg. v. Austin, 2 Cox C. C. 59; Rex v. Parry, 7 C. & P. 836, 32 ECL 898. Ont.-King_v. Mitchell, 24 Ont. L. 324, 19 CanCrCas 113, 19 OntWR 588. "On a plea of former jeopardy, the burden of proof is on the defendant to reasonably satisfy the jury of the truthfulness of the plea. The decisions as to the burden of proof in cases of self-defense do not apply to pleas of former jeopardy." Moss v. State, (Ala. A.) 75 S 179, 180. [a] Sufficiency of proof of former acquittal, conviction or jeopardy. Feagin v. State, 139 Ala. 107, 36 S 18: Martha V. State, 26 Ala. 72; Allen v. State, 70 Ark. 22, 65 SW 933; State v. Bradley, 45 Ark. 31; Daniels V. State, 78 Ga. 98, 6 AmSR 238; State v. Alexander, 66 Kan. 726, 72 P 227; State v. Scott, 1 Kan. A. 748, 42 P 264; State v. Ackerman, 64 N. J. L. 99, 45 A 27; Peo. v. Richards, 44 Hun 278 [rev on other grounds 108 N. Y. 137, 15 NE 371, 2 AmSR 373]; State v. Bronkol, 5 N. D. 507, 67 NW 680; Com. v. Brown, 28 Pa. Super. 296; Benton v. State, 52 Tex. Cr. 422, 107 SW 837; Clement v. State (Tex. Cr.) 86 SW 1016; Davidson v. State, 40 Tex. Cr. 285, 49 SW 372, 50 SW 365; Willis v. State, 24 Tex. A. 586, 6 SW 857; State V. Williams, 43 Wash. 505, 86 P 847; Rex v. Carver, 2 West Wkly 1170. 18. Com. v. Daley, 4 Gray (Mass.) 209; Griffith v. State, 93 Oh. St. 294, 112 NE 1017; State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127. [a] Discharge of jury on inability to agree.-Peo. v. Greene, 100 Cal. 140, 34 P 630; Dobbins v. State, 14 Oh, St. 493; O'Connor v. State, 28 Tex. A. 288, 13 SW 14. [b] Fraud and collusion in prosecution before magistrate-Com. v. Dascom, 111 Mass. 404 (evidence sufficient to show). 19. Ala. Faulk v. State, 52 Ala. 415. Ark.-Grayson v. State, 92 Ark. 413, 123 SW 388, 19 AnnCas 929; Emerson v. State, 43 Ark. 372. Ind. Jenkins v. State, 78 Ind. 133; Cooper v. State, 47 Ind. 61; Clem v. State, 42 Ind. 420, 13 AmR 369. Ky.-Vowells v. Com., 83 Ky. 193. Mass.-Com, v. Daley, 4 Gray 209. Miss.-Price v. State, 104 Miss. 288, 61 S 314; Rocco v. State, 37 Miss. 357. Mo.-State v. Wister, 62 Mo. 592; State v. Polk, 144 Mo. A. 326, 127 SW 933. N. J-State v. Ackerman, 64 N. J. L. 99, 45 A 27. N. Y.-Peo. v. Satchwell, 61 App. Div. 312, 70 NYS 307, 15 N. Y. Cr. 450. N. C.-State v. White, 146 N. C. 608, 60 SE 505. Oh.-Griffith v. State, 93 Oh. St. 294, 112 NE 1017; Bainbridge v. State, 30 Oh. St. 264; Whitman v. State, 27 Oh. Cir. Ct. 735. Tex.-Creech v. State, 70 Tex. Cr. 229, 158 SW 277; Kilcoyne v. State, (Cr.) 92 SW 36; Clement v. State, (Cr.) 86 SW 1016; Lowe v. State, 4 Tex. A. 34; Taylor v. State, 4 Tex. A. 29. Vt.-State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127; State V. Ainsworth, 11 Vt. 91. [a] Acquittal because of variance between pleading and proof.-Where a defendant on the trial of an indictment against him for a criminal charge is acquitted on the ground of a variance between the indictment and the proof, such acquittal forms no bar to the trial on a second indictment against him for the same offense. Canter v. Peo., 1 Abb. Dec. 305, 2 Transcr. A. 1, 5 AbbPrNS 21, 38 HowPr 91. [b] Sufficiency of proof of identity of offense and person.-Faulk v. State, 52 Ala. 415; Williams v. State, 8 Ga. A. 583, 70 SE 47; Hawaii v. Radin, 11 Hawaii 802; State v. Small, 31 Mo. 197; State v. Andrews, 27 Mo. 267; State v. Tatman, 151 Mo. A. 426, 132 SW 42; Peo. v. Satchwell, 61 App. Div. 312, 70 NYS 307; Bainbridge V. State, 30 Oh. St. 264; Whitman v. State, 27 Oh. Cir. Ct. 735; Jerue v. State, 57 Tex. Cr. 213. 123 SW 414; Davidson v. State, 40 Tex. Cr. 285, 49 SW 372, 50 SW 365: Reed v. State, (Tex. Cr.) 29 SW 1085; Wright v. State, 17 Tex. A. 152; Lowe v. State, 4 Tex. A. 34; Campbell v. State, 2 Tex. A. 187; State v. Ainsworth, 11 Vt. 91; Reg. v. Austin, 2 Cox C. C. 59 (identity of court.20 In making such proof defendant himself either may introduce evidence or may rely on the evidence introduced by the state.21 The question as to whether a person on trial has been tried previously for the same offense is a question of fact to be determined partly by the record of the former proceeding and partly by evidence outside the record.22 The record of the former conviction or acquittal is, of course, admissible,23 provided it is a sufficient record or transcript, and provided it is properly certified or authenticated 24 and shows the identity of the offense and of the person, or is accompanied by proof of such identity, or by an offer to prove the same.2 The record itself makes a prima facie case of identity in this respect if the same evidence required to support one prosecution would have warranted a conviction in the other,2 and it is then incumbent on the prosecution to show that the conviction was in fact for a different offense.27 25 But where each separate act is a dis the person). And see supra § 443 et seq. [c] Stealing national bank note.A plea of former acquittal to an indictment for stealing a national bank note is sufficient if sustained by proof that defendant formerly has been acquitted of stealing money, and that both indictments were for the same offense. State v. Moore, 66 Mo. 372. [d] A variance between the record referred to in the plea and that produced is fatal. State v. Williamson, 7 N. C. 216. 20. Barber v. State, 151 Ala. 56, 43 S 808. [a] Inferior courts.-And where the previous decision rendered is that of an inferior court, the burden of proving that the court was a court of competent jurisdiction is on defendant. Rex v. Taylor, 7 Alta. L. 72, 22 CanCrCas 234, 15 DomLR 679, 26 WestLR 652, 5 West Wkly 1105. 21. State v. Freeman, 162 N. C. 594, 77 SE 780, 45 LRANS 977. 22. Walter v. State, 105 Ind. 589, 5 NE 735; Dunn v. State, 70 Ind. 47; State v. Ackerman, 64 N. J. L. 99, 45 A 27; Com. v. Clinton, 38 Pa. Super. 573. "In all pleas of former acquittal or former conviction, the proof of the plea has to consist partly of matter of record and partly of matter not of record. And the identity of the two cases is the part of the plea which it is the peculiar business of the evidence which is not of record, to make out." Per Benning, J., in Sweeney v. State, 16 Ga. 467, 468 [quot Goode V. State, 70 Ga. 752, 754]. 23. Dunn V. State, 70 Ind. 47; Marshall v. State, 8 Ind. 498 (transcript of justice's record); State v. O'Conner, 4 Ind. 299; Com. v. Dotterer, 30 Pa. Co. 364. See also cases infra notes 24, 25. tinct and substantive offense, this test is not applicable, and no presumption of identity will arise from the fact that evidence sufficient to convict under one would warrant a conviction under the other; in such cases respondent must show affirmatively, by proof outside the record, that the offenses are one and the same.28 The record, when produced, proves itself, and is conclusive of all matter provable thereby;29 it cannot be contradicted, amended, or supplemented by parol testimony of what took place. at the trial.30 Ordinarily the former conviction or acquittal cannot be proved otherwise than by the record, which is the best evidence, and parol evidence is inadmissible, unless a foundation for its introduction is laid.31 But since the evidence is not exclusively of the record, parol evidence of course is generally admissible, and sometimes is necessary, to establish the defense of prior conviction or acquittal.82 Thus it is admissible on the question of the identity of defendant,33 and of the offense,34 or to [a] Admissibility of justice's record.-Moore v. State, 51 Ark. 130, 10 SW 22; State v. Day, 21 Del. 101, 58 A 946; Goudy v. State, 4 Blackf. (Ind.) 548; Ford V. State, 7 Ind. A. 567, 35 NE 34; Terr. v. Stocker, 9 Mont. 6, 22 P 496. [b] On suggestion of diminution of the record by the prosecuting attorney, certiorari will be awarded, directing a justice of the peace or a municipal court to certify the entire Roby, 12 Pick. record. Com. v. (Mass.) 496. 25. Peachee v. State, 63 Ind. 399; Porter v. State, 17 Ind. 415; Boyer v. State, 16 Ind. 451; Marshall v. State, 8 Ind. 498. (docket of justice). Tenn.-Jacobs v. State, 4 Lea 196. W. Va.-State v. Hudkins, 35 W. Va. 247, 13 SE 367. Eng. Rex v. Bowman, 6 C. & P. 101, 25 ECL 342. [a] As to the form or substance of the indictment, or exceptions thereto, the record alone can be vouched or received as evidence. State v. Hudkins, 35 W. Va. 247, 13 SE 367. [b] The original indictment and minutes of verdict upon it are admissible to support a plea of former acquittal without a record being drawn up. Rex v. Parry, 7 C. & P. 836, 32 ECL 898. 26. Peo. v. Satchwell, 61 App. Div. [c] Ex parte afdavits.-The fact 312, 70 NYS 307, 15 N. Y. Cr. 450; that accused, on trial for assault Peo. v. McGowan, 17 Wend. (N. Y.) with intent to murder, previously 386; State v. White, 146 N. C. 608, had been convicted of aggravated as60 SE 505; State v. Pianfetti, 79 Vt.sault under the same indictment, on 236, 65 A 84, 9 AnnCas 127. [a] Presumption of identity.If the offense proved and that described in the complaint correspond, and no other transaction is proved, there is a presumption from which the jury may infer that they are the same. Com. v. Dillane, 11 Gray (Mass.) 67. 27. Com V. Dillane, 11 Gray (Mass.) 67; Peo. v. Satchwell, 61 App. Div. 312, 70 NYS 307, 15 N. Y. Cr. 450; Peo. v. McGowan, 17 Wend. (N. Y.) 386; State v. Friedley, 73 W. Va. 684, 80 SE 1112; Reg. v. Bird, 5 Cox C. C. 11, 2 EngL&Eq 439. 28. Emerson v. State, 43 Ark. 372; State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127. And see cases infra note 34. 29. State v. Edwards, 42 La Ann. 414, 7 S 678; State v. Hudkins, 35 W. Va. 247, 13 SE 367. [a] The verdict is conclusive (1) as to the issue raised by a plea of former acquittal (Com. v. Wermouth, 174 Mass. 74, 54 NE 352), (2) unless it is proved that it was not duly receiver or is otherwise illegal (State v. Scott, 1 Kan. A. 748, 42 P 264). 30. Conway v. State, 4 Ind. 94: State v. Haynes, 35 Vt. 565; State v. Hudkins, 35 W. Va. 247, 13 SE 367. 31. Ga.-Bailey v. State, 26 Ga. 579. 24. Moore v. State, 51 Ark. 130, 10 SW 22; Myers v. State, 92 Ind. 390 (omission of copy of appointment of special judge and failure to show that the judgment was signed by the trial judge immaterial); Jenkins v. State, 78 Ind. 133 (omission of warrant from transcript immaterial); Porter v. State, 17 Ind. 415 (failure to show that indictment was recorded, compared with original, and certified by the judge immaterial); Chambers v. Com., 10 Ky. Op. 540, 541 (holding that evidence of a former acquittal in a criminal case is inadmissible, where the plea of former acquittal had not been properly entered, the only record of such a Mont. Terr. v. Stocker, 9 Mont. 6, plea being "This day came the de- 22 P 496 (loss of complaint). fendant and entered a plea of not guilty and former acquittal"); Com. Cr. 201. v. Roby, 12 Pick. (Mass.) 496. Ind. Walter v. State, 105 Ind. 589, 5 NE 735; Farley v. State, 57 Ind. 331. Miss.-Brown v. State, 72 Miss. 95, 16 S 202; Rocco v. State, 37 Miss. 357. Mo.-State v. Orr, 64 Mo. 339. N. Y.-Peo. v. Benjamin, 2 Park. Oh.-Robbins v. Budd, 2 Oh. 16 which judgment had not been entered, cannot be shown by ex parte affidavits; but the proper practice requires accused to file a motion in the case asking that the record be perpetuated and a judgment of conviction thereon entered. De Leon v. State, 55 Tex. Cr. 39, 114 SW 828. 32. U. S.-Durland v. U. S., 161 U. S. 306, 16 SCt 508, 40 L. ed. 709. Ill-Peo. v. Smith, 258 Ill. 502, 101 NE 957. Ind.-Goudy v. State, 4 Blackf. 548 (facts relative to the evidence given at a trial before a justice). Kan.-State v. Scott, 1 Kan. A. 748, 42 P 264 (evidence that verdict was not duly received). La.-State v. Judge, 42 La. Ann. 414, 7 S 678 (proof outside the record, on plea of former acquittal, that the indictment is not maintainable). Miss. Riley v. State, 43 Miss. 397; Noonan v. State, 9 Miss. 562. Eng. Reg. v. Austin, 2 Cox C. C. 59 (parol evidence in absence of record). 33. Peo. v. Brady, 272 Ill. 401, 112 NE 126; State v. Hudkins, 35 W. Va. 247, 13 SE 367; Reg. v. Austin, 2 Cox C. C. 59: Rex v. Quinn, 11 Ónt. L. 242, 6 OntWR 1011. 34. U. S.-Bartell v. U. S., 227 U. S. 427, 33 SCt 383, 57 L. ed. 583; Durland v. U. S., 161 U. S. 306, 16 SCt 508, 40 L. ed. 709. Cal-Peo. v. Preciado, 31 Cal. A. 519. 160 P 1090. Hawaii.-Hawaii v. Radin, 11 Hawaii 802; Reg. v. Poor, 9 Hawaii 295. Ill-Peo. v. Brady, 272 Ill. 401, 112 NE 126; Dis. op. Peo. v. Smith, 258 Ill. 502, 507, 101 NE 957 [cit Cycl Ind. Dunn v. State, 70 Ind. 47: Wilkinson v. State, 59 Ind. 416, 26 AmR 84. Iowa.-State v. Waterman, 87 Iowa 255, 54 NW 359. show fraud and collusion in a former prosecution be- 44 41 By 47 Jury. Subject of course to the right of the court to [§ 771] (8) Trial and Determination—(a) Ky.-Duncan v. Com., 6 Dana 295. | 314, 1 NW 666. La-State v. Edwards, 42 La. Ann. [a] Discharge of jury.-On the 414, 7 S 678. question of whether the jury were Miss.-Brown discharged because they could not agree, the testimony of the trial judge, as to the facts which constituted the legal necessity for the discharge, and as to the failure to agree, is admissible. Helm v. State, 67 Miss. 562, 7 S 487. v. State, 72 Miss. 95, 16 S 202; Rocco v. State, 37 Miss. 357. Mo.-State v. Thornton, 37 Mo. 360. N. Y.-Peo. v. Bevins, 74 Misc. 377, 134 NYS 212; Peo. v. Markell, 22 Misc. 607, 50 NYS 766. N. C-State v. White, 146 N. C. 608, 60 SE 505. Oh-Bainbridge v. State, 30 Oh. St. 264 (holding that the state, may prove that on the former trial it elected what transaction it would rely upon for a conviction, and that it was different from that solely relied upon on the second trial). Pa-Com. v. Dotterer, 14 Pa. Dist. 513, 515; Com. v. Dotterer, 30 Pa. Co. 364. Tex-Taylor v. State, 50 Tex. Cr. 288, 98 SW 839. Vt.-State v. Pianfetti, 79 Vt. 236, 65 A 84. Va.-Page v. Com., 27 Gratt. (68 Va.) 954 (fact or opinion). Wash.-State V. McIntyre, Wash. 178, 101 P 710. 53 W. Va.-State v. Hudkins, 35 W. Va. 247, 13 SE 367. Eng. Reg. v. Bird, 5 Cox C. 11, 2 Eng L&Eq 439. C. [a] Sending obscene matter through the mails.-Accused is entitled to resort to parol evidence on a prosecution for sending obscene matter through the mail to show that the letter on which the indictment is based has been the subject matter of a former prosecution, and therefore if the letter is too obscene to be spread on the record it is sufficient if a reference is made thereto in such detail that it may be identified. Bartell v. U. S., 227 U. S. 427, 33 SCt 383. 57 L. ed. 583. 35. State v. Reed, 26 Conn. 202; Com v. Dascom, 111 Mass. 404. 36. Parsons v. State, 179 Ala. 23, 60 S 864. 37. Brady v. Com., 1 Bibb (Ky.) 517 38. Carter v, State, 107 Ala. 146, 18 S 232 (evidence of what took place before a justice, the only question being as to his jurisdiction); Burnett v. State, 76 Ark. 295, 88 SW 956, 113 AmSR 94; Ball v. State, 48 Ark, 94, 2 SW 462; State v. Struble, 71 Iowa 11, 32 NW 1 (dismissal of count by state, rendering evidence irrelevant); State V. McCaffery, 16 Mont, 33, 40 P 63 (testimony, where the jurors did not deliver a verdict, as to what they agreed and disagreed upon). 39. State v. White, 146 N. C. 608, 60 SE 505. 40. State v. White, 146 N. C. 608, 60 SE 505. 41. Peo. v. Smith, 258 Ill. 502, 101 NE 957; State v. Smith, 33 N. C. 33 (testimony of a witness as to what another witness testified to at the former trial). 42. Peo. v. Smith, 258 Ill. 502, 101 NE 957; State v. Maxwell, 51 Iowa [b] Contents of lost complaint.On plea to an indictment of a former conviction, oral testimony of the magistrate before whom the former trial took place is admissible to show the contents of the complaint on which it was based, and that such complaint was sworn to before him, after he has testified that he has diligently searched for the complaint and that it cannot be found. Terr. v. Stocker, 9 Mont. 6, 22 P 496. 43. Reg. v. Bird, 5 Cox C. C. 11, 2 EngL&Eq 439. 44. Peo. v. Smith, 258 Ill. 502, 101 NE 957; Helm v. State, 67 Miss. 562, 7 S 487 (testimony of jurors as to whether the jury were discharged for failure to agree and as to the necessity of the discharge). 45. State v. Johnson, 11 Nev. 273; Peo. v. Bevins, 74 Misc. 377, 382, 134 NYS 212 [aff 149 App. Div. 935, 134 NYS 1141] (where the court said: "In the case at bar the defendant was being tried for disorderly conduct, and defendant's counsel produces a record of a prior conviction for public intoxication. It seems to me that it was for the court to decide whether the evidence offered was competent and relevant. Surely, the defendant's attorney's claim that the crimes were one and the same, didn't make it so; and it seems to me clear that the presiding judge had a right to pass in the first instance upon the question and decide whether the evidence of a former conviction, alleged to be for the same offense, should go to the jury for their consideration"). 46. Hite v. State, 9 Yerg. (Tenn.) 357. 47. Ala.-Reynolds v. State, 1 Ala. A. 24, 55 S 1016. Ark. Caldwell v. State, 69 Ark. 322, 63 SW 59, 70 Ark. 74, 66 SW 150. Colo.-Dockstader v. Peo., 43 Colo. 437, 97 P 254; Kinkle v. Peo., 27 Colo. 459, 62 P 197. Ky-Lucas v. Com., 118 Ky. 818, 82 SW 440, 26 KyL 740. La.-State v. Williams, 45 La. Ann. 936, 12 S 932; State v. Judge, 42 La. Ann. 414, 7 S 678. Nebr.-Bush v. State, 55 Nebr. 195, 75 NW 542; Arnold v. State, 38 Nebr. 752. 57 NW 378. Nev.-State v. Johnson, 11 Nev. 273. 110 P 397, 791. S. C.-State v. Dewees, 76 S. C. 72, 56 SE 674, 11 AnnCas 991. S. D.-State v. Irwin, 17 S. D. 380, 97 NW 7; State v. Kieffer, 17 S. D. 67, 95 NW 289. Tenn.-Hite v. State, 9 Yerg. 357. Tex.-Wilson v. State, 45 Tex. 76, 23 AmR 602; Scott v. State, (Cr.) 68 SW 680; Funderburk V. State, (Cr.) 64 SW 1059; Cook v. State, 43 Tex. Cr. 182, 63 SW 872, 96 AmSR 854; Usher v. State, 42 Tex. Cr. 461, 60 SW 555; Woodward v. State, 42 Tex. Cr. 188, 58 SW 135; McCullough v. State, (Cr.) 34 SW 753; Shubert v. State, 21 Tex. A. 551, 2 SW 883; Troy v. State, 10 Tex. A. 319; Quitzow v. State, 1 Tex. A. 47, 28 AmR 396. Utah. In re Barton, 6 Utah 264, 21 P 998. Wyo.-McGinnis v. State, 17 Wyo. 106, 96 P 525. [a] Duty of the court.-(1) If a special plea of former conviction is sufficient to admit of evidence, and is supported by any evidence at the trial, it is the bounden duty of the court to submit whether it is "true" or "untrue" as an issue to be tried and found by the jury. Grisham v. State, 19 Tex. A. 504. (2) On such plea, although the court may influence, and in some cases control, the jury, it is a question which the jury alone must decide. Peo. v. Wilkison, 30 Cal. A. 473, 158 P 1067; Solliday v. Com., 28 Pa. 13. 48. Cal.-Peo. v. Wilkison, 30 Cal. A. 473, 158 P 1067. Ky. Lemon v. Com., 171 Ky. 822, 188 SW 858; Raubold v. Com., 111 Ky. 433, 63 SW 781, 23 KyL 735; Chesapeake, etc., R. Co. v. Com., 88 Ky. 368, 11 SW 87, 10 KyL 919. La.-State v. Judge, 42 La. Ann. 414, 7 S 678. Mo.-State v. Laughlin, 168 Mo. 415, 68 SW 340; State v. Wiseback, 139 Mo. 214, 40 SW 946; State v. Hatcher, 136 Mo. 641, 38 SW 719; State v. Huffman, 136 Mo. 58, 37 SW 797. N. Y.-Peo. v. Connor, 142 N. Y. 130, 36 NE 807 [aff 65 Hun 392, 20 NYS 209, 8 N. Y. Cr. 439]. Tenn.-Hite v. State, 9 Yerg. 357. Tex.-Prine v. State, 41 Tex. 300; Woodward v. State, 42 Tex. Cr. 188. 58 SW 135; Scott v. State, (Cr.) 67 SW 680; Cook v. State, 43 Tex. Cr. 182, 63 SW 872; Munch V. State, 25 Tex. A. 30, 7 SW 341. W. Va.-State v. Cross, 44 W. Va. 315, 29 SE 527; State v. Hudkins, 35 W. Va. 247, 13 SE 367. Eng-Rex v. Parry, 7 C. & P. 836, 32 ECL 898. 49. Caldwell v. State, 69 Ark. 322, 63 SW 59. 70 Ark. 74, 66 SW 150; Funderburk v. State, (Tex. Cr.) 64 N. J.-State v. Ackerman, 64 N. J. SW 1059. N. Y.-Grant v. Peo., 4 Park. Cr. N. C.-State v. Cale. 150 N. C. 805, 50. State v. Johnson, 11 Nev. 273. 51. Wilson v. State, 45 Tex. 76, 23 AmR 602; Scott v. State, (Tex. Cr.) 68 SW 680; Funderburk v. State, (Tex. Cr.) 64 SW 1059: Cook V. State, 43 Tex. Cr. 182, 63 SW 872, true.5 52 But it has been held that, where the plea fails to set up a legal jeopardy, or is wholly frivolous and insufficient, it is competent for the court to strike the same out.53 It has been held 54 and denied 55 that the right to a jury may be waived. Distinction of issue. In England, and in many of the states of the Union, it is held that former conviction or acquittal is a distinct issue, and cannot properly be submitted to the jury along with the general issue of not guilty.56 The former must be 96 AmSR 854; Bland v. State, 42 Tex. Cr. 286, 59 SW 1119; Shubert V. State, 21 Tex. A. 551, 2 SW 883; Troy v. State, 10 Tex. A. 319. See also Woodward v. State, 42 Tex. Cr. 188, 58 SW 135 (holding that the plea | should be submitted to the jury under proper instructions), 52. Coburn v. State, 151 Ala. 100, 44 S 58, 15 AnnCas 249; Dockstader v. Peo., 43 Colo. 437, 97 P 254; Kinkle v. Peo., 27 Colo. 459, 62 P 197; Lovett v. State, 80 Ga. 255, 4 SE 912. 53. Ala. Spraggins v. State, 139 Ala. 93, 35 S 1000. Fla.-Strobhar V. State, 55 Fla. 167, 47 S 4; O'Brien v. State, 55 Fla. 146, 47 S 11. Okl.-Hamlin v. State, 8 Okl. Cr. 187, 126 P 704; Morris v. Terr., 1 Okl. Cr. 617, 99 P 760, 101 P 111; Jonnson v. State, 1 Okl. Cr. 321, 97 P 1059, 18 AnnCas 300. Tex.-Shubert v. State, 21 Tex. A. 551, 2 SW 883. Va.-Wortham v. Com., 5 Rand. (26 Va.) 669. [a] Thus (1) where the plea, if true, fails to state any reason why defendant could not be tried again for the offense, it will be treated as a nullity and frivolous, and will be stricken out on motion. Strobhar v. State, 55 Fla. 167, 47 S 4. (2) A plea of autrefois acquit which does not set forth the court, the time, or other circumstances of the trial or acquittal, nor vouch the record, nor show it, if of another court should be rejected on motion. Wortham v. Com., 5 Rand. (26 Va.) 669. (3) Where the indictments show that the former acquittal was for an offense distinct from that for which the party is being tried, it is competent for the court to strike out a plea of former acquittal. Morris v. Terr., 1 Okl. Cr. 617, 99 P 760. 101 P 111: Usher v. State, 42 Tex. Cr. 461, 60 SW 555; Taylor v. State, 41 Tex. Cr. 564, 55 SW 961: Byas v. State, 41 Tex. Cr. 51, 51 SW 923, 96 AmSR 762; Epps v. State, 38 Tex. Cr. 284, 42 SW 552; Wright v. State, 37 Tex. Cr. 627, 40 SW 491. 54. Thomas V. State, 7 Ga. A. 637, 67 SE 694; Taylor v. State, 4 Tex. A. 29. [a] "By failing to object to the judge's passing upon the plea of former jeopardy and by neglecting to insist upon his demand for a jury trial. he must be held to have waived his right to have the issue passed on by a jury. A party can not sit by and fail to object, when objection should be made, and not be held to waive a right upon which it was his duty to insist." Thomas v. State, 7 Ga. A. 637. 639, 67 SE 894. 55. Arnold v. State. 38 Nebr. 752, 57 NW 378; Grant v. Peo., 4 Park. Cr. (N. Y.) 527; State v. Irwin, 17 S. D. 380, 97 NW 7. 56. Ala. Faulk v. State, 52 Ala. 415; Foster v. State, 39 Ala. 229; Henry v. State, 33 Ala. 389; State v. Nelson, 7 Ala. 610; Moss v. State, (A.) 75 S 179. Ark. Lee v. State, 26 Ark. 260, 7 Am R 611. Ga.-McWilliams v. State, 110 Ga. 290, 34 SE 1016. Ind.-Clem v. State, 42 Ind. 420, 13 AmR 369. Kan-State v. Hager, 61 Kan. 504, 59 P 1080, 48 LRA 254. disposed of before the latter is submitted to the jury, although if accused proceeds to trial upon both pleas he waives the irregularity.58 Other cases hold that the two issues may be tried and submitted at the same time for separate findings or verdicts,5 and this is the regular practice in some states. In any case the jury always must find specially on this plea, for, until there is a verdict thereon, there can be no judgment of conviction or acquittal.1 The issues of not guilty and of former acquittal La.-State v. Edwards, 42 La. Ann. | guilty should be tried separately, 414, 7 S 678. Mass.-Com. v. Bakeman, 105 Mass. 53; Com. v. Merrill, 8 Allen 545. Mo.-State Manning, 168 Mo. 418, 68 SW 341. Eng.-Rex v. Roche, 1 Leach C. C. 160. V. since the plea of former conviction implies an admission of the criminal act, and is inconsistent with an absolute denial. State v. Respass, 85 N. C. 534; State v. Pollard, 83 N. C. 597. (2) But the practice of trying them together has become not unusual, and often is convenient. State v. Smith, 170 N. C. 742, 87 SE 98; State v. White, 146 N. C. 608, 60 SE 505; State v. Taylor, 133 N. C. 755, 46 SE 5; State v. Ellsworth, 131 N. C. 773, 42 SE 699, 92 AmSR 790; State v. Winchester, 113 N. C. 641, 18 SE 657; State v. Washington, 89 Ń. C. 535, 45 [a] Reason for rule.-"To do so would lead to the absurdity that the jury would be obliged to find on both; and yet, if their first finding was for the prisoner, they could not go on to the second, because the first finding would be a bar. They are distinct issues, and the jury must be separately charged with them.' Un-Am R 700. til the issue upon the plea of former acquittal, or former conviction, is disposed of, there can be no trial in chief." Henry v. State, 33 Ala. 389, 399. 57. U. S. Thompson v. U. S., 155 U. S. 271, 15 SCt 73, 39 L. ed. 146. Ala.-Parsons V. State, 179 Ala. 23, 60 S 864; De Arman v. State, 77 Ala. 10; Moody v. State, 60 Ala. 78; Faulk v. State, 52 Ala. 415; Foster v. State, 39 Ala. 229; Henry v. State, 33 Ala. 389; Toney v. State, 10 Ala. A. 220, 65 S 92; Reynolds v. State, 1 Ala. A. 24, 55 S 1016. Ark. Lee v. State, 26 Ark. 260, 7 AmR 611. Ga.-McWilliams v. State, 110 Ga. 290, 34 SE 1016. Ind. Clem v. State, 42 Ind. 420, 13 AmR 369. La.-State v. Judge, 42 La. Ann. 414, 7 S 678. Mass.-Com. v. Merrill, 8 Allen 545. 389. Eng.-Rex v. Roche, 1 Leach C. C. 160. 58. State v. Spurgeon, 102 Mo. A. 34, 74 SW 453. 60. Peo. v. Briggs, 1 Dak. 302, 46 NW 451, 452; State v. Green, 16 Iowa 239; Davis v. State, 42 Tex. 494; Pritchford v. State, 2 Tex. A. 69. [a] In Tennessee, by Acts (1860) c 102, defendant must file his plea of former acquittal along with what other defenses he may have, and they are all tried at the same time. Crippen v. State, 3 Heisk. 25. 61. Ala.-Spraggins v. State, 139 Ala. 93, 35 S 1000; Moody v. State, 60 Ala. 78; Dominick v. State, 40 Ala. 680, 91 AmD 496; Toney v. State, 10 Ala. A. 220, 65 S 92. Cal.-Peo. v. O'Leary, 16 P 884; Peo. v. Hamberg, 84 Cal. 468, 24 P 298; Peo. v. Fuqua, 61 Cal. 377; Peo. v. Helbing, 59 Cal. 567; Peo. v. Kinsey, 51 Cal. 278. 29. N. Y.-Peo. v. Burch, 5 N. Y. Cr. Okl.-Bonham v. State, 6 Okl. Cr. 227, 118 P 159. Pa. Solliday v. State, 28 Pa. 13; Com. v. Demuth, 12 Serg. & R. 389. S. D.-State v. Kieffer, 17 S. D. 67, 95 NW 289. W. Va.-State v. Hudkins, 35 W. Va. 247, 13 SE 367. But see Canal Zone v. Clark, 1 Canal Zone 128 (holding that, if a defendant goes to trial without objection under pleas of not guilty and of former acquittal, a plea of guilty is equivalent to a verdict that there had been no former acquittal). [a] In Alabama (1) where this rule is established, it is held that, if the pleas of former acquittal and not guilty are tried and submitted to the jury at the same time, failure of defendant to object is a waiver of the irregularity in the case of a misdemeanor. Moody v. State, 60 Ala. 78; Faulk v. State, 52 Ala. 415; Toney [a] In Texas (1) when defendv. State, 10 Ala. A. 220, 65 S 92; ant's special plea of former convicWiggs v. State, 5 Ala. A. 189, 59 Stion or acquittal is submitted to the 516 (in the absence of a specific request for separate submission). (2) But it is not so in the case of a felony. Parsons v. State, 179 Ala. 23. 60 S 864; Faulk v. State, 52 Ala. 415; Foster v. State, 39 Ala. 229. [b] By agreement of counsel. Where the attorneys for defendant and for the commonwealth agree that the two issues shall be submitted to the jury at the same time, although the proceedings are irregular, no exception can be taken by defendant. Com. v. Dascom, 111 Mass. 404. 59. Ark.-Hines v. State, 110 Ark. 32. 160 SW 894. N. Y.-Peo. v. Connor, 142 N. Y. 130, 36 NE 807 [aff 65 Hun 392, 20 NYS 209, 8 N. Y. Cr. 439]. N. C.-State v. Cale, 150 N. C. 805, 63 SE 958. 134 AmSR 957. Pa. Solliday v. Com., 28 Pa. 13. Wash.-State v. Elliott, 69 Wash. 62, 124 P 212. W. Va.-State v. Hudkins, 35 W. Va. 247, 13 SE 367. [a] In North Carolina (1) it has been held that regularly the two pleas of former conviction and not jury, their verdict must expressly find whether the plea is "true" or "untrue." Deaton v. State, 44 Tex. 446; Davis v. State, 42 Tex. 494: Wright v. State, 27 Tex. A. 447, 11 SW 458; Smith v. State, 18 Tex. A. 329; McCampbell v. State, 9 Tex. A. 124, 35 AmR 726; Brown v. State, 7 Tex. A. 619. (2) But where a jury is waived and the case is submitted to the judge, the judgment need not show that the plea was found "true" or "untrue." Taylor v. State, 4 Tex. A. 29. [b] Verdict held responsive to issue. The verdict is sufficiently responsive to the issue, where defendant pleads former acquittal of the same offense charged in the indictment, and the verdict finds "that she hath not before been acquitted of the same offence." Vaughan v. Com., 2 Va. Cas. (4 Va.) 273. [c] A general verdict of guilty is not responsive to a plea of former conviction, but only to the plea of not guilty, where both pleas are in issue, and the failure of the verdict to dispose of the plea of former con 63 70 or conviction may be submitted to the same,62 fact to the jury." or to a So where the facts are not condifferent, jury. This matter is within the sound troverted, the court has authority to direct a verdict legal discretion of the judge before whom the trial for or against the state as the case may require.71 is conducted.64 67 [ 772] (b) By Court. The sufficiency of the plea in the first instance is for the court," 65 and when the plea on its face shows that the question raised by it is a matter of law and not of fact,66 as where issue is made by a demurrer to the plea, or by a replication setting up that there is no such record as that set forth in the plea, it is a question for the court alone, which should pass upon the question of law presented and either sustain the plea and discharge defendant or overrule the plea and place him on trial on the merits.68 The court may charge the jury that the plea is not sustained by the proof, when that is a fact.69 Thus, when the issue comes to be tried, the record must be produced, and if it is substantially variant from that set forth in the plea the court will direct that a verdict be found against the plea without submitting the matters of viction is reversible error. Toney v. State, 10 Ala. A. 220, 65 S 92. 62. State v. Manning, 168 Mo. 418, 68 SW 341; Peo. v. Connor, 142 N. Y. 130, 36 NE 807 [aff 65 Hun 392, 20 NYS 209, 8 N. Y. Cr. 439]; State v. Hudkins, 35 W. Va. 247, 13 SE 367. [a] The order in which the issues shall be disposed of is in the discretion of the court, which has power to direct them to be tried separately or together. Peo. v. Connor, 142 N. Y. 130, 36 NE 807 [aff 65 Hun 392, 20 NYS 209]. 63. Peo. v. Trimble, 60 Hun 364, 15 NYS 60 [aff 131 N. Y. 118, 29 NE 1100]. 64. State v. Hudkins, 35 W. Va. 247, 13 SE 367. 65. McGinnis v. State, 17 Wyo. 106, 96 P 525. "If this plea in bar was insufficient, and if the court could so have adjudged it on demurrer, we have no doubt that the court would be equally justified if the questions were submitted to the court as to the sufficiency of the pleadings, in determining it without a demurrer; that is, in examining it to ascertain whether there was any proper issue to go to the jury." Horner v. State, 23 Oh. Cir. Ct. 568, 571. 66. U. S.-Bassett v. U. S., 9 Wall. 38, 19 L. ed. 548; U. S. v. Peters. 87 Fed. 984 [aff 94 Fed. 127, 36 CCA 105]. La.-State v. Foley, 114 La. 412, 38 S 402; State v. Lee, 46 La. Ann. 623, 15 S 159; State v. Paterno, 43 La. Ann. 514, 9 S 442; State v. Meekins, 41 La. Ann, 543, 6 S 822; State v. Shaw, 5 La. Ann. 342. Md-Watson v. State, 105 Md. 650, 66 A 635. Mo.-State v. Manning, 168 Mo. 418, 68 SW 341; State v. Williams, 152 Mo. 115, 53 SW 424, 75 AmSR 441; State V. Potter, 125 Mo. A. 465, 102 SW 668. N. M.-Terr. v. Donahue, 16 N. M. 17. 113 P 601. N. C.-State v. Ellsworth, 131 N. C. 773, 42 SE 699, 92 AmSR 790. Oh.-Gormley v. State, 37 Oh. St. 120; Horner v. State, 28 Oh. Cr. Ct. 568 Okl-Loyd v. State, 6 Okl. Cr. 76, 116 P 959. Tex.–Simco v. State, 9 Tex. A. 338; Pickens v. State, 9 Tex. A. 270. Wyo. McGinnis v. State, 17 Wyo. 106. 96 P 525. Eng. Reg. v. Connell, 6 Cox C. C. 178. [a] A so-called "special plea of former jeopardy" in the form of a motion to discharge defendant and to exonerate his bond, based on former proceedings in the same court, so that no evidence is required, and only a question of law is presented, does not require any issue to be joined and [§ 773] (9) Judgment and Pleading Over. When the plea of former acquittal or conviction is sustained, defendant must be discharged as upon an acquittal.72 Where the prosecution is for a felony, and the issue on the plea is decided against defendant, the judgment, even at common law, is respondeat ouster, and defendant pleads guilty or not guilty; or, if he has pleaded over in the plea, the jury are charged again to inquire of the second issue,78 or in some jurisdictions, as has been shown, both issues may be submitted at the same time.74 In the case of misdemeanors, at common law, defendant could not plead over, but the judgment against him on the special plea was final and as upon a conviction;75 but in most states, in the absence of statute,76 he is allowed now to plead over in prosecutions for misdemeanors as well as in prosecutions for felonies," at least where his plea has been determined against 519; Rex v. Roche, 1 Leach C. C. 160; Rex v. Wildey, 1 M. & S. 183, 105 Reprint 69. properly may be disposed of by the [b] Discharge of jury without 67. Horner v. State, 28 Oh. Cir. Ct. 568; Reg. v. Connell, 6 Cox C. C. 178. [a] Where the former proceedings [b] Distinct offenses.-When the Loyd v. State, 6 Okl. Cr. 76, 116 P 959. Iowa.-State v. Jamison, 104 Iowa N. J.-State v. Ackerman, 64 N. J. N. C.-State v. Ellsworth, 131 N. C. Tenn.-Hite v. State, 9 Yerg. 357. [a] Where no evidence is introduced in support of the plea the jury may be directed to find the issue of former jeopardy for the state. Parsons v. State, 179 Ala. 23, 60 S 864; Johnson v. State, 34 Tex. Cr. 115, 29 SW 473. 70. Hite v. State, 9 Yerg. (Tenn.) 357. 71. Peo. v. Cummings, 123 Cal. 269, 65 P 898; Peo. v. Ammerman, 118 Cal. 23, 50 P 15; Peo. v. Palassou, 14 Cal. A. 123, 111 P 109; Com. v. Brown, 28 Pa. Super. 296. 72. State v. Ackerman, 64 N. J. L. 99, 45 A 27; State v. Holloway, 57 Or. 162, 110 P 397, 791; 2 Hale P. C. p 391. 73. Mass.-Com. V. Golding, 14 Gray 49; Com. v. Wade, 17 Pick. 395; Com. v. Roby, 12 Pick. 496. N. Y.-Peo. V. Trimble, 60 Hun 364, 15 NYS 60 [aff 131 N. Y. 118, 29 NE 1100]; Peo. v. Saunders, 4 Park. Cr. 196. Or.-State v. Holloway, 57 Or. 162, 110 P 397, 791. Vt.-State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127. Eng. Coogan's Case, 2 East P. C. 1001; Rex v. Vandercom, 2 East P. C. 74. See supra § 771. 75. Colo.-Hughes v. Peo., 8 Colo. 536, 9 P 50. Mass.-Com. v. Golding, 14 Gray 49. Tenn.-State v. Epps, 4 Sneed 552. Vt.-State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127. Wis. McFarland v. State, 68 Wis. 400, 32 NW 226, 60 AmR 867. Eng.-Rex v. Taylor, 3 B. & C. 502, 10 ECL 231, 107 Reprint 820; Reg. v. Bird, 5 Cox C. C. 11, 2 EngL& Eq 439; Rex v. Gibson, 8 East 107, 103 Reprint 284; Reg. v. Goddard, 2 Ld. Raym. 920, 92 Reprint 114; 1 Chitty Cr. L. p 461. [a] Reason for rule.-"This practice is based on the ground that, where the plea is held not good, it is to be regarded the same as a plea of guilty. The defendant, by his plea, admits the commission of the offense as charged, but pleads that he has already been punished for it. This plea, being adjudged untrue upon the facts stated therein, he stands before the court as having pleaded guilty and judgment is rendered ac cordingly." Hughes v. Peo., 8 Colo. 536, 540, 9 P 50. 76. Peo. v. Briggs, 1 Dak. 302, 46 NW 451; State v. Green, 16 Iowa 239. [a] In Maine (1) under Rev. St. (1857) c 77, § 287, now Rev. St. (1903) c 79, § 56, when a plea of autrefois acquit is overruled, and defendant excepts and stands upon his exceptions instead of pleading over, he must abide the fate of the exceptions. If they are determined against him, there must be final judgment for the state. State v. Jellison, 104 Me. 281, 284. 71 A 716 (where the court said: "The defendant's plea of former jeopardy was a dilatory plea, since, if overruled, the judgment, but for the statute cited, would be simply respondeas ouster. He pleaded his dilatory plea alone, without obtaining leave to plead double, and his plea having been adjudged insufficient, he excepted, and, without obtaining leave to plead over if his exceptions should be overruled, he brought them directly to the Law Court before the trial was closed. Under the statute it must be held that by taking the course he did, he waived whatever right he may have had to plead over, when his dilatory plea was overruled; and that having thus elected to abide by that plea he must fall with it"). (2) Judgment is final for the state when a demurrer is sustained to a special plea of former conviction, and not respondeat ouster. State v. Inness, 53 Me. 536. 77. Ark.-Lee V. State, 26 Ark. |