tion arises from inhabitancy, a prescription must be alleged (r). And in conformity with this distinction, between an obligation to repair by reason of tenure and of inhabitancy, it has been holden, that an indictment against a particular part only of a parish for not repairing a highway in the parish, stating that the inhabitants of the district, from time immemorial, ought to repair and amend it, is insufficient; it ought to state, that the inhabitants of such district, from time whereof, &c. have used and been accustomed, and of right ought, to repair and amend it, for the inhabitants of a particular division of a parish are not bound to repair by common law, and therefore the indictment should shew the reason of their obligation (s).

But an individual cannot be bound by prescription, unless in respect of his tenure of land, taking of toll, or other profit; for the act of the ancestor cannot charge the heir without profit, though a corporation, or a parish, or part of it, may be charged by prescription to do so (t).

As a county may plead that an individual is bound to the repair of a bridge, so if that individual has been indicted and fined by the judgment of the court, the county may plead the conviction, setting forth the record and averring the identity of the bridge, &c. (u).

VI. Plea-General issue.

By the general plea, that he is not guilty of the treason or felony alleged against him, the defendant denies the

(r) 1 Haw. c. 76. s. 8. (s) 5 Burr. 2700. 3 Keb. 301. 3 Bac. Ab. 58. 2 T. R.

111.

384.; in a case of this kind it does not appear to be necessary that the defendants should be prepared with the record en

(t) 13 Co. 33. 1 Haw. c. 76. poigne, as in case of a plea to s. 8. 3 Bac. Ab. 58. an indictment for felony. See

(u) Trem, P. C. 206. Ray. the precedent, postea.

whole of the charge, and he may give his special defence in evidence though the matter of fact be proved against him. And upon the defendant's giving special matter of excuse or justification in evidence, the jury are as much bound to take notice of it as if it had been specially submitted to their consideration by a special plea (x).

The defendant may have the benefit of this plea, in capital cases, after any special plea has been overruled (y), or even after a demurrer (z).

It has been said, that by pleading the general issue the defendant waives the benefit of a pardon under the great seal (a). But this position does not appear to be correct. In Arundel's case, the defendant pleaded the king's pardon after a conviction of homicide, and Sir Edward Coke, then attorney-general, replied to the plea (b).

And, in general, the pleading not guilty is no waiver of a special plea, and does not render it double (c).

But if A. having the king's pardon of manslaughter, be arraigned upon an indictment for murder, he ought not to plead not guilty, for he would thereby waive his pardon. He ought to confess the indictment as to the manslaughter and plead the king's pardon, and as to the killing with malice prepense he shall plead that he is not guilty. Then, if he were to be found guilty of murder, he would have judgment, if acquitted of the murder his plea would be allowed (d).

(x) 2 Hale, 258.

(y) 2 Hale, 257.

(z) 2 Hale, 257. contra.
(a) 2 Haw. c. 37. s. 59.
(b) Trem. 273. 6 Co. 14.

(c) 22 E. 4. 29. 2 Hale,

256.

(d) So ruled by Lord Hale in Sir Thomas Pettus's case,

24 C. 2. 2 Hale, 258. in confformity with the st. 13 R. 2. c. 1. which expressly requires that before any pardon shall be allowed, it shall be inquired by the county, whether the killing were of malice prepense, and if so the pardon shall be disallowed.

The plea to an indictment for felony consists of two parts; 1. The issue of not guilty, whereupon the clerk joins issue by the words cul. prist. 2. The putting himself upon the country, when the clerk demands how he will be tried.

And if either of these fail, the prisoner stands mute, whereupon he was formerly, in case of felony, put to his penance; but now, in case of both treason and felony (e), judgment is given and he becomes attainted (f).

Upon a criminal information or indictment for a misdemeanor, if the defendant do not plead, judgment is given as upon a conviction (g). Upon the plea of not guilty, issue is joined for the king, by the words A. B. qui pro rege sequitur similiter, &c.

And it seems that there is no necessity for any addition to shew that A. B. is the proper officer for this purpose, for it is to be intended that he was known to be such by the court (h). And in appeals of felony, whether by an appellant or an approver, issue is in general.expressly joined by the appellant or approver (i).

It has already been seen, that where defendants are charged with the omission of the duty to the performance of which they are prima facie bound by the law of the land, they cannot discharge themselves under the general issue, but must set forth the grounds of their discharge by a special plea. But in all other cases the defendant is intitled to the benefit of his defence upon evidence under the general issue, and, therefore, a special plea is seldom resorted to (k).

(e) By stat. 12 G. 3 c. 20. (ƒ) 2 Hale, 258.

(g) 4 Bl. Com. 525.

(h) 2 Haw. c. 38. s. 2. (i) Rastal, 42. 2 Haw. c. 38. s. 3.

(k) If after conviction the

defendant pray the benefit of the statute, the prosecutor should file a counterplea; for the form of this, and likewise of special replications in particular cases, see the PRECEDENTS.

341

CHAP. XX.

Of the Verdict,

I. General Verdict, p. 343.

II. Partial Acquittal, p. 346.

III. Special Verdict, finding the facts, p. 351.

UPON a capital charge, a verdict cannot be given in the absence (a) of the defendant, and should be returned openly (b) in court; and the jury, just before they give their verdict, are required by the clerk of the arraigns to look upon the prisoner (c). But in case of a misdemeanor below the degree of felony, if the prisoner has appeared and pleaded, the prosecutor may proceed to trial, and a ver dict may be given against him in his absence. According to ancient custom, and even according to the practice of criminal courts for a considerable space of time after the revolution, it was holden, that a jury sworn and charged in a capital case, could not be discharged until they had given a verdict, a rule calculated to give an offender one more chance of escaping, in case of the accidental inability or perverse default of a juror (d).

(a) 2 Hale, 298.

(b) 2 Haw. c. 47. s. 2. 1 Ins. 227. 3 Ins. 110.

(c) Ray, 193.

(d) Leach, 706. 3d ed. 2 Hale, 295. Fost. 76. Ann Scalbert's case, Leach, 720. 4th ed. 2 Haw. c. 47. s. 1. Fost. 29

Where the offence turns out in evidence to be of an higher degree than is alleged in the indictment, it is in the discretion of the court to discharge the jury and to direct another indictment to be preferred. Thus, where the indictment charges the prisoner with murder, and the offence appears to be petit treason, it would not be advisable to direct the jury to acquit, least the defendant should avail himself of the acquittal in bar of a second indictment; and in such case the most prudent course would be to discharge the jury upon that indictment, and to direct a fresh one to be preferred (e). So if upon an indictment or action for a trespass the offence appear to be felony, no verdict ought to be taken unless the defendant has been acquitted of the felony (ƒ).

The jury may either deliver a general verdict of conviction or acquittal upon the whole of the charge against one or more defendants; or, secondly, they may specially find the defendant guilty of part of the charge and acquit him of the remainder; and where several are indicted together, may find one or more guilty of the whole or part, and acquit the rest; or, thirdly, they may find the special facts upon which the charge is founded.

I. If they find the prisoner generally, guilty, judgment may be given against him, provided any one count in the indictment be sufficient to support the charge, though the rest of the indictment be faulty; for being guilty generally, he is severally guilty of each offence separately charged, and, therefore, is found guilty upon that charge which is sufficient to warrant the judgment (g).

(e) Fost. 327. 328. 104. su- 2 Roll. Ab. 556, 7. 1 Mod. pra, p. 38.

(f) R. v. Cross, 12 Mod. 520, 634. 2 Haw. c. 47. s. 6.

283.

(g) Salk. 384, 730. Str. 845. Cowp. 276.