stand indicted by the name of A. B., [late of, &c.] for that you, on the [&c., as in the indictment, to the end, except that it is addressed to the prisoner in the second person, and that the second and subsequent counts are stated shortly]: How say you, A. B., are you guilty of this [felony] whereof you stand indicted, or not guilty?"

Upon an indictment for a subsequent offence after a previous conviction, the prisoner is to be arraigned upon the whole indictment, including the former conviction; and if he plead not guilty, then the jury in the first instance are charged with the subsequent offence, and only that part of the indictment read to them which relates to it; and if they find him guilty, then (without their being again sworn) that part of the indictment relating to the previous conviction is read to them, and they are charged with it; and if they find that he was previously convicted, then a verdict of guilty on the whole indictment is entered. This has been determined to be the proper course, by the whole body of the judges, upon full consideration. Per Lord Campbell, C. J., in R. v. Shuttleworth, 21 Law J. 36, m. See post, p. 624. In cases of murder or manslaughter, where, besides the indictment, there is also a coroner's inquisition, it is usual to arraign the prisoner on the inquisition immediately after arraigning him on the indictment, and to try him on both at the same time. 1 East, P. C. 371.

The holding up of the hand is a mere ceremony, and not of any importance. It is principally done where there are two or more arraigned upon the same indictment, for the purpose of ascertaining which of them is A. B., which C. D., &c. 2 Hawk. c. 28, s. 2. R. v. Ratcliffe, 1 W. Bl. 3. But the court will not dispense with the prisoner's standing at the bar, whatever his station in life may be, particularly in cases of felony. R. v. Douglas, Car. & M. 193. In this latter case, however, (which was the case of Captain Douglas, who surrendered to take his trial for being second to Lord Cardigan, in a duel with Captain Tuckett), Williams, J., allowed several of the prisoner's friends to stand beside him in the dock. In a subsequent case, where a foreigner, who was a merchant in London, was indicted for fitting out a ship to be employed in the slave trade, his counsel applied that the prisoner might sit by him instead of going into the dock,-not on account of his station in life, but because he was a foreigner, and many of the documents in the case were in a foreign language, which would render it necessary for his counsel from time to time to communicate with him personally for the purposes of his defence, the court (Maule & Wightman, JJ.), however, held that the application was one which could not be granted. R. v. Pedro de Zulueta, 1 Car. & K. 215.

Formerly, when there was more danger of rescue and escapes

than there is at present, it was no uncommon thing for prisoners to be brought to the bar of the court in irons. And they were obliged to stand at the bar in irons during the arraignment, and until they had pleaded, the judges saying that they had no authority to order them to be struck off until the trial. R. v. Layer, 16 How. St. Trials, 94, 99, 129. R. v. Waite, 2 East, P. C. 570. 1 Leach, 28. 36. trial, however, the irons were always struck off. Id.

At the

Standing mute, &c.] If any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information: in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of " not guilty" on behalf of such person; and the plea so entered shall have the same force and effect, as if such person actually pleaded the same. 7 & 8 G. 4, c. 28, s. 2. And to ascertain whether a person who stands mute, is mute of malice or by the visitation of God, the judge will immediately charge the jury to try this collateral issue; and the gaoler, or such other person as can give evidence upon the subject, shall be sworn and examined. See R. v. Mercier, 1 Leach, 183. R. v. Steele, 1 Leach, 451. Where a prisoner, upon his arraignment stated that he was deaf, and upon the indictment being read over to him he appeared not to understand it: Gifford, C. J., immediately directed a jury to be impanelled, to try whether he stood mute of malice, or by the visitation of God. R. v. Hulton, 1 Ry. & M. 78. Where a prisoner, who had already been tried and convicted, but whose trial was deemed a nullity on the ground of some informality in the swearing of the witnesses who gave evidence before the grand jury, was again arraigned upon an indictment for the same offence, and refused to plead, alleging that he had already been tried: Littledale, J., and Vaughan, B., ordered a plea of not guilty to be entered for him, under the above statute. R. v. Bitton, 6 Car. & P. 92. But if the jury, upon being so impanelled, find that the prisoner is insane, the court shall record such verdict, and order the party to be kept in strict custody, in such place and in such manner as to them shall seem fit, until Her Majesty's pleasure shall be known. 39 § 40 G. 3, c. 94, 3. 2. See ante, p. 4, 5.

Plea.] Upon being asked whether he is guilty or not guilty, the defendant may plead ore tenus "not guilty," of which the clerk of arraigns or clerk of the peace makes a minute on the indictment, and puts it into form, if it afterwards becomes necessary to make up the record. Formerly the clerk of the peace asked the defendant also, how will you be tried? and

he answered, "by God and my country." But now, by stat. 7 & 8 G. 4, c. 28, s. 1, if any person, not having the privilege of peerage, being arraigned for treason, felony, or piracy, shall plead thereto a plea of "not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial; and the court shall, in the usual manner, order a jury for the trial of such person accordingly.

If, instead of pleading "not guilty," the defendant say that he is "guilty," this is a confession of the offence, which subjects him precisely to the same punishment, as if he were tried and found guilty by verdict. But as defendants often imagine that, by pleading guilty, they are likely to receive some favour from the court in the sentence that will be passed upon them, the judge very frequently undeceives them in that respect, and apprizes them that their pleading guilty will make no alteration whatever in their punishment. If, however, they still persist in their plea of guilty, it is then recorded by the clerk of arraigns or clerk of the peace; and in the record, when made up, the judgment immediately follows the plea.

Traverse.] Formerly, in all cases of misdemeanors, the defendant was not bound to submit to be tried at the same assizes or sessions at which the bill was found, but had a right to traverse it, that is to say, to put off his trial, until the next following assizes or sessions for the same county. This was afterwards somewhat modified by stat. 1 G. 4, c. 4. But now, by stat. 14 & 15 Vict. c. 100, s. 26, that statute is repealed; and by sect. 27, no person, prosecuted, shall be entitled to traverse or postpone the trial of any indictment found against him at any session of the peace, session of oyer and terminer, or session of gaol delivery: provided always, that if the court, upon the application of the person so indicted or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such court may adjourn the trial of such person to the next subsequent session, upon such terms as to bail or otherwise as to such court shall seem meet, and may respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent session without entering into any fresh recognizance for that purpose.

3. Special Pleas.

Pleas in abatement.] A defendant is not allowed in criminal cases, as in civil actions, to plead in abatement that another indictment is pending against him for the same offence;

2 Harck. c. 34, s. 1; and if he go on to show that he was acquitted or convicted on the former indictment, the plea is then a plea in bar, not in abatement. But the only pleas in abatement in criminal cases are, that the indictment gives the defendant no christian or first name or a wrong one, no surname or a wrong one, no addition of degree or mystery or a wrong one. But this is now of no use; for by stat. 7 G. 4, e. 64, s. 19, no indictment or information shall be abated by reason of any dilatory plea of misnomer, or of want of addition or wrong addition of the party offering the plea, but in such a case the court 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 dilatory plea had been pleaded. And by stat. 14 & 15 Vict. c. 100, s. 24, no indictment shall be holden insufficient, for want of, or imperfection in, the addition of any defendant. See ante, p. 78.

Auterfois acquit.] That the defendant was formerly indicted and acquitted, is a good plea in bar to a subsequent indictment for the same offence; 2 Hale, 241, 242. 2 Hawk. c. 35, s. 1; for the law will not suffer a man to be twice put in jeopardy for the same offence. Id. So, if a man be acquitted on an indictment for murder, he cannot afterwards be indicted for manslaughter of the same person, for he might have been convicted of manslaughter on the former indictment. 2 Hale, 246. So, if a man be indicted for burglary and larceny, and acquitted, he cannot afterwards be indicted for the larceny. After being indicted and acquitted on an indictment for felony, he cannot afterwards be indicted for an attempt to commit it, for he might have been convicted for the attempt on the previous indictment for the felony. See 14 & 15 Vict. c. 100, s. 9. For the same reason, a man, indicted and acquitted on an indictment for robbery, cannot afterwards be indicted for an assault with intent to commit it; Id. s. 11; a man indicted and acquitted for a misdemeanor, which, upon the trial, appears to be a felony, cannot afterwards be indicted for the felony; Id. s. 12; so, a person indicted and acquitted for embezzlement, cannot afterwards be indicted as for a larceny; or if tried and acquitted for a larceny, cannot afterwards be indicted as for embezzlement, upon evidence of the same facts; Id. 8. 13; or if a man be indicted and acquitted of having, with others, received stolen goods, he cannot afterwards be indicted for separately receiving them. Id. s. 14. If a man be indicted and acquitted of obtaining goods by false pretences, he cannot afterwards be indicted upon the same facts as for a larceny; see 7 & 8 G. 4, c. 29, s. 53; but if he be indicted and acquitted of a larceny, he may afterwards be indicted upon the same facts for obtaining the goods or money under false pre

tences. R. v. Henderson et al., Car. & M. 328. If on a former indictment against an accessory before the fact, which specially charged him with inciting, &c., he was acquitted, he may afterwards be indicted as principal; 2 Hawk. c. 35, s. 12; but if he were indicted as principal on the former occasion, it would be otherwise. The former indictment, however, must appear to have been a good and valid indictment for the offence, and which might be supported by the same evidence as would support the present one. 2 Hawk. c. 35, s. 8. R. v. Vandercombe, 2 Leach, 708; and see Vaux's case, 4 Co. 45 a. Wigg's case, 4 Co. 46b. And the acquittal must appear to have been before a court which had jurisdiction of the offence. Therefore, where a man was tried at the sessions in Southwark, and it appearing that the offence was committed a few yards within the city of London, the defendant was acquitted; being afterwards indicted in London for the same offence, he pleaded auterfois acquit: but the judges held the plea to be bad, as the sessions had no jurisdiction to try the offence. R. v. Welsh, Ry. & M. 175.

As to the form of the plea: by stat 14 & 15 Vict. c. 100, s. 28, it is enacted that “in any plea of auterfois convict or auterfois acquit, it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the offence charged in the indictment." The following therefore may be the form of a

Plea of Auterfois Acquit.

And the said A. B., in his own proper person, cometh into court here, and having heard the said indictment read, saith that our Lady the Queen ought not further to prosecute the said indictment against him; because he saith that heretofore, to wit, at a sessions of oyer and terminer and general gaol delivery [or at the general quarter sessions of the peace] holden at in and for the county of the said A. B. was lawfully acquitted of the said offence charged in the said indictment: And this he the said A. B. is ready to verify; wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the present indictment specified.

Replication thereto.

he

And hereupon E. F., [the clerk of arraigns or clerk of the peace] who prosecutes for our Lady the Queen in this behalf, saith that by reason of any thing in the said plea of the said A. B. above pleaded in bar alleged, our said Lady the Queen ought not to be precluded from further prosecuting the said