by a plea in abatement; for by 7 Geo. IV. c. 64, s. 19, no indictment or information shall be abated by reason of any dilatory plea of misnomer: but if the court shall be satisfied, by affidavit or otherwise, of the truth of such plea, it shall forthwith cause the indictment or information to be amended according to the truth; and shall call upon the party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded. And by 14 & 15 Vict. c. 100, s. 24, no indictment shall be held insufficient for want of, or imperfection in, the addition of any defendant. Let us therefore next consider a more substantial kind of plea, viz.

IV. A special plea in bar; which goes to the merits of the indictment, and gives a reason why the prisoner ought to be discharged from the prosecution. These are principally of four kinds (r). A former acquittal; a former conviction; a former attainder; or a pardon.

1. [The plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy more than once, for the same offence (s): and hence it is allowed as a consequence, that when a man is once fairly found not guilty upon an indictment or other prosecution, before any court having a competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime (t).] This however applies only to an acquittal by verdict of a petty

(r) In the particular case where a parish is indicted for not repairing a road, or a county for not repairing a bridge, another kind of special plea in bar occurs; for the parish or county may respectively plead, in discharge of their presumptive liability, that some other party is liable to a special obligation to repair.

VOL. IV.

(8) "Jeopardy of his life," is the expression of Blackstone (vol. iv. p. 335). The maxim, however, is not confined to capital felonies, and extends even to misdemeanors. See an instance of autrefois acquit pleaded in a case of misdemeanor, R. v. Taylor, 3 B. & C. 502.

(t) See Beak v. Thyrwhit, 3 Mod. 194; Hawk. P. C. b. 2, c. 35, s. 10. D D

was

jury (u): and therefore if a man be committed to take his trial for a crime at some particular assizes or sessions whereat no bill is preferred against him, he is still liable to be indicted at a subsequent assizes or sessions, for the same crime; and if the bill against him be thrown out by the grand jury, or if the petty jury having him in charge be discharged by the judge before verdict (x), he is in either case liable to be indicted again (y). The doctrine applies, also, only to the case where the first indictment was not substantially erroneous. For if it were, the former prosecution is no bar, because the defendant never legally in jeopardy (z). It is also to be observed, that, in general, the crime of which the defendant was before acquitted must be identical with that with which he now stands charged: but upon this point, distinctions of much nicety arise. Thus if a man be acquitted upon an indictment of murder, he may not only plead autrefois acquit to a subsequent indictment for the murder, but even to an indictment for the manslaughter of the same person; or è converso, if he be indicted for manslaughter, and be acquitted, he shall not be indicted for the same death, as murder; for the two cases differ only in the degree of guilt, and the fact is the same (a). So if he be indicted for a murder, as committed on a certain day, and be afterwards indicted again for the murder of the same person on a different day, he may plead autrefois acquit, and aver it to be the same felony; for the day is not material (b). On the other hand, if a

(u) 2 Hale, P. C. 243, 246; Hawk. P. C. b. 2, c. 35, s. 6. See The Queen v. Charlesworth, 1 B. & S. 507.

(x) See Winsor v. The Queen, Law Rep., 1 Q. B. 289.

(y) 1 Chit. Cr. L. 458; 2 Hale, P. C. ubi supra. But the grand jury cannot, after throwing out the bill, find another bill against him

for the same offence, at the same assizes or sessions. (R. v. Humphreys, Carr. & M. 601; R. v. Austin, 4 Cox, C. C. 386.)

(z) 4 Rep. 45, a; 2 Hale, P. C. 393. See The Queen v. Green, 26 L. J. (M. C.) 17.

(a) 2 Hale, P. C. 246.

(b) 2 Hale, P. C. 244. Hale adds "Besides the death is of a person

man be indicted as accessory, and acquitted, that acquittal will be no bar to an indictment as principal, nor è converso. It was formerly doubted, indeed, whether he might not plead an acquittal as principal, to a second indictment charging him as accessory before the fact; but the general doctrine is now held to apply to that case also (c). For though the offence may in some respects be considered as the same, the prisoner may be convicted under the second indictment, upon facts which would not have warranted his conviction under the first (d). We may conclude our remarks on the subject of the plea of autrefois acquit, by observing that the defendant, in adopting this plea, usually also pleads at the same time the general issue, denying the felony charged; and if the former plea is found against him, the trial proceeds upon the second (e).

2. [The plea of autrefois convict, or a former conviction (whether judgment was ever given or not) for the same identical crime, is also a good plea in bar to an indictment: and this depends upon the same principle as the former, that no man ought to be twice brought into danger for one and the same crime: and it is governed in general by the same rules (f).] And if the former conviction was for a capital offence, and followed by an actual judgment of death, the defendant may resort to—

3. The plea of autrefois attaint, or a former attainder

"certain, who can be but once "killed." The same law, however, as he himself proceeds to observe, "applies to an indictment of rob"bery;" though it is possible that several robberies may be committed on several days.

(c) Vide sup. p. 45.

(d) See Hawk. P. C. b. 2, c. 35, s. 11; 2 Hale, P. C. 244; Fost. 361; R. v. Birchenough, 1 M. C. C. R. 477; R. v. Parry, 7 C. & P. 836. (e) Arch. Cr. L. by Jervis, 9th ed.

for the same crime (g); for this, also, is a good plea in bar, depending upon the same principle, and governed in general by the same rules, as the plea of autrefois convict. It might formerly indeed have been pleaded where a man, after being attainted of one felony, was afterwards indicted for another offence; for the prisoner being considered as dead in law by the first attainder, and having therefore already forfeited all that he had, it was considered as absurd and superfluous to endeavour to attaint him a second time (h). But now, by 7 & 8 Geo. IV. c. 28, s. 4, it is enacted, that no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment.

4. Lastly, a pardon may be pleaded in bar, as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict (i). In capital offences, there was one advantage that used to attend pleading a pardon in bar, or in arrest of judgment, before sentence was passed, which gave it by much the preference to pleading it after sentence or attainder. This was that, by stopping the judgment, it stopped the attainder; and prevented that corruption of blood, which followed in certain cases on conviction; and which could not afterwards be purged except by Act of parliament (k). But there is now, as we shall see hereafter, no corruption of blood; and as the title of pardons is applicable also to other stages of the prosecution,—a pardon being pleadable (according to the period at which it is obtained) not only in bar of the indictment; but, after verdict, in arrest of judgment; or after judgment, in bar of execution:- the further consideration of them shall be reserved, till we have gone through every other title except only that of execution.

Before we conclude this head of special pleas in bar, it is proper to observe, [that if such a plea of a prisoner charged with felony shall be found against him upon issue tried by a jury, or adjudged against him in point of law by the court, still he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster; and may plead over to the felony the general issue, not guilty (1). For the law allows many pleas by which a prisoner may escape the punishment of felony, but only one plea in consequence whereof it can be inflicted: viz. on the general issue, after an impartial examination and decision of the facts, by the unanimous verdict of a jury.] It remains therefore that we consider

V. The general issue, that is to say, the plea of not guilty. This is the proper form, wherever the prisoner means either to deny or to justify the charge in the indictment; and it is to be observed, that in such case there can be no special plea, either in treason or felony. [Thus on an indictment for murder, a man cannot plead that it was in his own defence, against a robber; but he must plead the general issue, not guilty, and give this special matter in evidence. For, (besides that such pleas do in effect amount to the general issue, since, if true, the prisoner is most clearly not guilty,) as the facts in treason are laid to be done proditoriè, and in felony, to be done felonicè; these charges of a traitorous or felonious intent are the points and very gist of the indictment; and must be answered directly by the general negative, not guilty,— the effect of which is, that on the one hand it puts the prosecutor to the proof of every material fact alleged in the indictment or information; and on the other it entitles the defendant to avail himself of any defensive circum

(1) 2 Hale, P. C. 239. R. v. Gibson, 8 East, 110. This is confined, as stated in the text, to felonies. It does not apply to indict

ments, or informations, for misdemeanors (R. v. Taylor, 3 B. & C. 502); having been originally established only in favorem vitæ.