stolen bank notes, which did not conclude "contra formam statuti," was held bad; for it was quite clear that, but for the Statute which made it an offence to steal bank notes, it could be no crime to receive them, knowing them to be stolen. (a)

So an indictment for obtaining money by false pretences, when such pretences came clearly within the Statute, and would not be indictable at common law, must have concluded "contra formam statuti." (b)

The general rule was, that, in indictments for offences created by Statute, the conclusion "contra formam statuti" was necessary. It was pretty clear, however, that, under the old Statutes, the omission of these words was not fatal after verdict, though it might, perhaps, have been on demurrer. (c)

There seems now no doubt that an indictment following the forms contained in the 32 & 33 Vic., c. 29, sched A., will be sufficient, whether on demurrer, or after verdict, although it does not conclude against the form of the Statute or Statutes. (d)

Even if the omission of these words is a defect, it can only be objected to by demurrer, or motion to quash the indictment, before the defendant has pleaded. (e)

Where there were two or more Statutes distinct and separate, and not cumulative, an indictment concluding against the form of the Statutes would have been demurrable for uncertainty; but if, in such case, it concluded against the form of the Statute, it would not be demurrable, being good on the face of it, and the only question would be, to what Statute did it relate. (ƒ)

(a) Reg. v. Deane, 10 U. C. Q. B. 464.

(b) Reg. v. Walker, 10 U. C. Q. B. 465.

(c) Reg. v. Cummings, 16 U. C. Q. B. 15; confirmed on appeal, 4 U. C. L. J. 182; Reg. v. Tweedy, 23 U. C. Q. B. 120, per Draper, C. J.

(d) See Reg. v. Cummings, supra; 32 & 33 Vic. c. 29, s. 23 and 78.

(e) Reg. v. Cummings, supra, 184, per Draper, C. J.; 32 & 33 Vic., c. 29,

8. 32.

(f) Ib. 187, per Macaulay, C. J.

If an indictment conclude against a particular Statute, it would be good; but, in such case, it would be demurrable, if it did not follow the language of the Statute, and saying that it was against the Statute, without stating a case that came within it, could not cure the objection. (a)

The general rule of law is, that no person shall be twice placed in legal peril of a conviction for the same offence. Consequently, on an indictment for any offence, a previous conviction, or acquittal of the same offence, may be a good plea in bar. The true test by which the validity of such a plea may be ascertained is, whether the evidence necessary to sustain the second indictment would have warranted a legal conviction upon the first. (b)

The prisoner must be in legal peril on the first indictment, and the principle is well established that, unless the first indictment was such that the prisoner might have been convicted upon it, on proof of the facts contained in the second indictment, an acquittal on the first can be no bar to the second. (c)

Where A., being charged as the reputed father of a bastard child, of which B. was then pregnant, appeared at the January Sessions and denied the charge. B. was then sworn as a witness, but, it appearing to the Sessions that she did not understand the nature of an oath, the case was dismissed, and A.'s sureties discharged. After the birth of the child, A was again charged, before a subsequent Sessions, with being the father, and pleaded antrefois acquit :-Held, (Parker, J., dubitante, and Ritchie, J., dissentiente) that the January Sessions had power to try whether A. was the father or not, though

(a) Reg. v. Cummings, 4 U. C. L. J. 187, per Macaulay, C. J.

(b) See Reg. v. Magrath, 26 U. C. Q. B. 385.

(c) Ex parte Estabrooks,4 Allen, 280, per Wilmot, J.

they could not make an order of filiation till the child was born, and that, therefore, A. being once acquitted by a tribunal having legal authority to try the offence, he could not again be imperilled for the same offence. (a)

When, with reference to these pleas, it is said that a man is twice tried, a trial which proceeds to its legitimate and lawful conclusion by verdict, is meant. When a man is said to be twice put in jeopardy, it signifies a putting in jeopardy by the verdict of a jury, and that he is not tried nor put in jeopardy until the verdict comes to pass; because if that were not so it is clear that in every case of defective verdict a man could not be tried a second time, and yet it is admitted that, in the case of a verdict palpably defective, though the jury have pronounced upon the case, yet it will not avail the party, if a second time put on trial. (b)

A party is not necessarily in jeopardy when a jury is sworn and evidence given. The true and rational doctrine is that, where a trial proves abortive by reason of no legal verdict having been given, the acquittal is no bar to a subsequent indictment, and a venire de novo may be awarded. (c)

A party is not in jeopardy, in the legal sense of the word, if there is a verdict against him on a bad indictment. (d) The rule means that a man shall not twice be put in peril, after a verdict has been returned by the jury, that verdict being given on a good indictment, and one on which the prisoner could be legally convicted and sentenced. (e)

Where a juryman is taken ill, or some unforeseen ac

(a) Ex parte Estabrooks, 4 Allen, 273.

(b) Reg. v. Charlesworth, 9 U. C. L. J. 49, per Cockburn, C. J.; 1 B. & S. 460; 31 L. J. (M. C.) 25; see also Reg. v. Sullivan, 15 U. C. Q. B. 199.

(c) Ib. 50, per Wightman, J.

(d) Ib. 51, per Crompton, J.

(e) Winsor v. Reg. L. R. 1 Q. B. 311, per Cockburn, C. J. See also Reg. v. Magrath, 26 U. C. Q. B. 385.

FF

cident occurs, which would be within the ordinary excepted cases in which a jury may properly be discharged, or the jury give an imperfect verdict, or one which cannot be supported in point of law, a venire de novo may be awarded, and the defendant cannot plead autrefois acquit, because he has not been in legal jeopardy. (a)

These are the only pleas known to the law of England to stay a man from being tried on an indictment or information. (b)

If the prisoner might have been convicted upon the first indictment, though, in fact, he was acquitted by a mistaken direction of the Judge, he may plead autrefois acquit.

If A. commits a burglary, and at the same time steals goods out of the house, if he be indicted for the larceny only and be acquitted, yet he may be indicted for the burglary afterwards, and e converso if indicted for the burglary, with intent to commit larceny, and he be acquitted, yet he may be indicted of the larceny, for they are several offences, though committed at the same time. A man, acquitted of stealing the horse, may be convicted of stealing the saddle, though both were done at the same time. (c)

It would seem that in all cases where, by our Statute Law, a prisoner, indicted for one offence, is liable to be convicted of another, an acquittal or conviction of the former would be a good bar to an indictment for the latter. (d)

In fact, s. 52 of the 32 & 33 Vic., c. 29, provides that no person shall be tried or prosecuted for an attempt to commit any felony or misdemeanor, who has been previously

(a) Reg. v. Charlesworth, 9 U. C. L. J. 50, per Wightman, J.

(b) Winsor v. Reg., L. R. 1 Q. B. 314, per Blackburn, J.; Reg. v. Charlesworth, supra, 49, per Cockburn, C. J.

(c) Reg. v. Magrath, 26 U. C. Q. B. 388 et seq. per Draper, C. J.

(d) See 32 & 33 Vic. c. 21, s. 74-99, c. 29, s. 49, 50, and 51.; and Reg. v. Gorbutt, Dears. & B. 166; 26 L. J. (M. C.) 47.

tried for committing the same offence. By this clause, the Legislature sanctions the application of the above principle to the particular case of an indictment for committing a felony or misdemeanor.

The pleas only apply where there has been a former judicial decision on the same accusation, in substance, and where the question in dispute has been already decided. (a)

A conviction for assault, the charge being of assault, by Justices in Petty Sessions, at the instance of the person assaulted, and imprisonment consequent thereon, are not, either at common law or under the 32 & 33 Vic., c. 20, s. 45, a bar to an indictment for manslaughter of the person assaulted, should he subsequently die from the effects of the assault. (b) The word "cause," in the section, must be read as synonymous with "accusation " or "charge," and, in this case, the accusation or charge was the assault. Consequently, a conviction therefor was only a bar to a subsequent indictment for the same offence.

The defendant entered into a recognizance to keep the peace and be of good behaviour towards Her Majesty and all her liege subjects. A sci. fa. was afterwards brought for breach of this recognizance. by committing an assault on one H. M., on the 4th of August, 1858. On the trial, a judgment of the Sessions, affirming the conviction of the defendant before Magistrates, for the same assault, was proved:-Held, that the conviction for the assault was not coextensive with all that was charged, as a breach, in the sci. fa.; that the 4 & 5 Vic., c. 27, s. 28, only protected from punishment, in any proceeding, for the same offence or the "same cause"; that the sci. fa. was

(a) Reg. v. Morris, L. R. 1 C. C. R. 94, per Byles, J. (b) Ib. 90.