And these two cases cannot be questioned. There can never be the crime of murder till the party assaulted dies; the crime has no existence, in fact or law, till the death of the party assaulted. Therefore, it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party. That new element of the injured person's death is not merely a supervening aggravation but it creates a new crime; per Lord Ardmillan, in Stewart's Case, (Scotland), 5 Irvine, 310. S. 633, ante, will probably be held not to apply where the aggravation results from facts subsequent to the first indictment. A man steals twenty pigs at the same time, can he be charged with twenty larcenies of one pig, in twenty different indictments? After verdict on the first indictment can he maintain a plea of autrefois acquit or autrefois convict in answer to the subsequent indictments? It may be said that, in principle, a man who steals twenty pigs, at the same time, commits but one larceny, but one criminal act. Suppose a man steals a bag containing three bushels of potatoes, could he be charged with three larcenies of one bushel each, in three different indictments, or with two larcenies in two indictments, one of the bag, and one of the potatoes? Or if a man steals ten pounds in ten one pound notes, can he be charged in ten different indictments with ten different larcenies of one pound? Then A., at one shot, murders B. and C., though the shot was directed at B. only; has be committed one murder or two murders ? If he is tried for the murder of B. and acquitted, can he plead autrefois acquit to an indictment charging him with the murder of C.? Of course not. He is guilty of two murders. In all these cases there has been only one criminal act, only one actual execution of a criminal design, only one guilty impulse of the mind; yet, it appears to be settled that where several chattels are stolen at the same time, an acquittal on an indictment for stealing one of them is no bar to an indictment for stealing another of them, although it appear that both were taken by the same act: 8th Rep. Cr. L. Comm., 5th July, 1845. "And thus it hath happened," says Hale, vol. 2, p. 245, "that a man acquitted for stealing the horse hath yet been arraigned and convicted for stealing the saddle, though both were done at the same time." And in R. v. Brettel, Car. & M. 609, 2 Russ. 60, it was held that where the prisoner had been convicted of stealing one pig, he might be tried for stealing another pig at the same time and place; but as the prisoner was undergoing his sentence upon the conviction already given against him, the Judge (Cresswell, J.) thought that the second indictment should be abandoned, and this was done. Erle, J., in R. v. Bond, 1 Den. 517, seemed to be of opinion that one act of taking could not be two distinct crimes. He said: "I do not think it necessary in a plea of autrefois convict, to allege the identity of the specific chattel charged to be taken (under the old form of such pleas). Suppose the first charge to be taking a coat; the second, to be taking a pocket-book; autrefois convict pleaded parol evidence showing that the pocket-book was in the pocket of the coat. I think that I would support the plea because it would show a previous conviction for the same act of taking." : But a note by Greaves, 2 Russ. 60, thinks this dictum erroneous, and the reporter, in Denison, in a foot note to the case says: "Quere, whether a plea of autrefois acquit or convict would be supported by mere proof of the same act of taking? Suppose a purse stolen containing ten sovereigns, five belonging to A., five to B. Two indictments preferred one charging prisoner with a theft from A., the other with a theft from B.; a conviction of the theft from A. If the same act of taking were the gist of the crime, he could plead autrefois convict to the indictment of stealing from B. It seems that, to support a plea of autrefois conrict or acquit, there must be proof of 'a taking of the same thing from the same party at the same time.'" If, according to this note, in the case where ten sovereigns are stolen at one and the same time, in the same purse, five belonging to A., five to B., two crimes have been committed by one act, it follows that in the case of the stealing of a bag containing potatoes, if the bag belongs to A., and the potatoes to B., two larcenies may be charged, one of the bag and one of the potatoes. See R. v. Champneys, 2 M. & Rob. 26. The proof, on a plea of this nature, lies on the defendant, and he is to begin: Archbold, 133; 2 Russ. 62, note by Greaves. In order to prove a formal acquittal or conviction, if it took place at a previous session or in a different court, the prisoner must produce the record regularly drawn up: R. v. Bowman, 6 C. & P. 101, 337. But if it took place at the same assizes, the original indictment, with the notes of the clerk of the court upon it, are sufficient evidence: R. v. Lea, 2 Moo. 9 (called R. v. Parry, in 7 C. &. P. 836). But see ss. 694, 726, 865 & 866 post. If any issue of fact as to identity of charges, or of persons, etc., is raised it must be tried by a jury as in R. v. Lea, 2 Moo. 9. See s. 690, post. Conviction for unlawfully taking girl of sixteen out of possession of her father not a bar under autrefois convict to indictment for seduction of same girl: R. v. Smith 19 O.R. 714. Greaves' MSS. note.-"The next question is, supposing the judges of C. C. R. were to hold that evidence had been improperly received or rejected, and simply deter mined to arrest or reverse the judgment, could the prisoner be indicted de novo, and tried and convicted for the same offence? And it is perfectly clear that he could. Nothing, except a verdict of guilty or not guilty on a valid indictment, and a lawful and still existing judgment on such verdict can afford a bar to another prosecution for the very same offence. See my note, 2 Russ. 69 et seq. R. v. Winsor, 6 B. & S. 143-7-190; 2 Hale, 246; Vaux's Case, 4 Rep. 44." "I have said on a valid indictment. Now an indictment may be either actually valid or valid as against the crown in some cases; for a very material distinction exists between an acquittal and conviction upon a bad indictment. If autrefois acquit be pleaded and the former indictment is bad upon the face of it, the plea fails, because the judgment may and is to be supposed to have been upon that defect, as it is simply quod eat sine die (3 Inst. 214, 2 Hale, 248, 394). But if a prisoner be convicted and sentenced on an insufficient indictment a plea of autrefois convict will be good unless the judgment has been reversed: 2 Hale, 247; for the judgment could only be given on the verdict. So if a special verdict be found, and the court erroneously adjudges it to be no felony, autrefois acquit is a good plea as long as that judgment is unreversed on error: 2 Hale, 246. And in the case of an acquittal, if the judgment has been quod eat inde quietus, as the ancient form is in case of acquittal upon not guilty pleaded, that could never refer to the defect of the indictment, but to the very matter of the verdict, and the prisoner could not be indicted again until the judgment had been reversed on error: 2 Hale, 394." "Whenever a plea of autrefois acquit or convict in the short form allowed by the 14 & 15 V. c. 100, s. 28, is pleaded, if the former indictment, or other part of the record be bad on the face of it, the question arises whether the replication should not set out the record and conclude with a demurrer. If the objection was the only answer to the plea, it would seem to be the better course. A jury might in such a case err, as they certainly did in R. v. Lea, 2 Moo. 9, where, against the direction of the judge, and without any reasonable evidence, they found for the prisoners, and it was held that the verdict could not be set aside. A judge might also decide erroneously against the crown; and, if a verdict passed for the prisoner, there would be great doubt whether any remedy existed. A case could not be reserved under the Act, for there would not be any conviction, and error would not be available, for the former record could not appear on the subsequent record, and there is grave doubt as to a special verdict in such a case. But if judg ment were given against the crown on such a replication as I have suggested, error might remedy the mischief." 634. PLEA OF JUSTIFICATION IN CASE OF LIBEL |