indictment against the said A. B.; because he saith that the said A. B. was not lawfully acquitted of the said offence charged in the said indictment, in manner and form as the said A. B. hath in his said plea above alleged; and this he the said E. F. prays may be inquired of by the country, &c. And the said A. B. doth the like. Therefore let a jury come, &c.

The usual replication formerly, when the record of the former acquittal was set out in the plea, was nul tiel record. But as in this modern form of plea the record is not set out, and there is of course no prout patet per recordum, and as there is no such thing as a trial by the record in criminal cases, but the trial in all cases must be by the country,—it seems to me that a mere general traverse of the plea is the proper replication in this case.

In proof of the plea, the record of the former acquittal must be made up; and if the former trial were at the quarter sessions, the court of Queen's Bench will, if necessary, grant a mandamus requiring the justices to make up the record. R. v. JJ. of Middlesex, 5 B. & Ad. 1113. And formerly the record or an examined copy of it must have been given in evidence by the defendant. But now, by stat. 14 & 15 Vict. c. 99, s. 13, (after reciting that it is expedient, as far as possible, to reduce the expense attendant upon the proof of criminal proceedings), it is enacted, that whenever in any proceeding, whatever it may be, it shall be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof; but it shall be sufficient that it be certified or purport to be certified under the hand of the clerk of the court or other officer, having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof.

If there be a variance between the former record and the present indictment, in the description of the offence, it may be made good by evidence, showing in substance that the proofs necessary to support the present indictment, would have been sufficient to convict him upon the former one.

If the verdict be in favour of the defendant, the judgment is that he be dismissed and discharged from the said premises in the present indictment specified, and that he go thereof without day. But if the verdict be against the defendant, then in felonies the judgment is of respondeas ouster; but in misdemeanors the judgment is final. R. v. Taylor, 3 B. & C.502.

Auterfois convict or attaint.] If the defendant were formerly attaint or convicted of the same offence, he may plead it in bar to the present indictment. 2 Hale, 253. 2 Hawk. c. 36. And see R. v. Scott, 1 Leach, 401. R. v. Bowman, 6 Car. & P. 337. The observations already made respecting the plea of auterfois acquit, are equally applicable to this plea. The form of the plea is also the same, merely substituting the word "convicted" for "acquitted." Formerly auterfois attaint of another felony, was a bar to any subsequent indictment for felony, whilst the former attainder continued in force. But now, by stat. 7 & 8 G. 4, c. 28, s. 4, "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."

Pardon.] If a pardon have been granted to the defendant for the offence of which he is indicted, he may plead it in bar of the indictment. Formerly the pardon must have been under the great seal. But now, by stat. 7 & 8 G. 4, c. 28, s. 13, where the King, by warrant under his sign manual countersigned by one of his principal secretaries of state, shall grant to any felon a free or conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal, as to the felony for which such pardon shall be granted; but no pardon shall affect or mitigate the punishment of the offender for any felony committed by him after the granting of such pardon. The pardon however is only a bar to an indictment for the offence specified in it, and not for any other, committed before or after. R. v. Harrod, 2 Car. & K. 294.

Pleas to indictments for not repairing highways, &c.] Pleas to indictments for not repairing highways or bridges, showing that the inhabitants of some other district, or that some persons ratione tenure are bound to repair it,—are the only other special pleas, which occur in practice in criminal cases. As we shall have to notice this subject particularly, however, in the second part of the work, when we come to consider indictments in particular cases and the evidence necessary to support them, we shall defer treating of these pleadings until we treat of the subject altogether.

4. Demurrer.

A demurrer is a pleading, by which the legality of the last preceding pleading is denied and put in issue, and the issue is

then determined by the court. A demurrer is pleaded either to the indictment, or to a special plea.

Demurrer to indictment.] Formerly a demurrer to an indictment was unusual, because the defendant might have the same advantage of objecting, by motion in arrest of judgment, or writ of error. Afterwards certain defects in indictments were cured by verdict by stat. 7 G. 4, c. 64, s. 20, which therefore could only be taken advantage by demurrer. R. v. Fenwick, 2 Car. & K. 915. And now, by stat. 14 & 15 Vict. c. 100, s. 25, every objection to any indictment, for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared. This however has only reference to formal defects; defects in substance may still be taken advantage of, where not cured or amended, by motion in arrest of judgment or writ of error, as before.

A demurrer in criminal cases, has the effect of opening the whole record to the court; and therefore upon arguing it, the defendant may take objections, as well to the jurisdiction of the court where the indictment was found, as to the subject matter of the indictment itself. R. v. Fearnley, 1 T. R. 316.

In misdemeanors, the judgment upon demurrer is final, and not merely that the defendant shall answer over. Per Lawrence, J., in R. v. Gibson, 8 East, 112. But in capital cases the defendant is not concluded by the judgment on demurrer, but if the judgment be against him, he may still plead not guilty; and where a defendant in such a case demurs, it is usual for him at the same time to plead over to the felony. R. v. Phelps et al., Car. & M. 180. R. v. Adams et al., Id. 299. But in felonies not capital, it seems to be doubtful whether the judgment is final or merely a judgment of respondeas ouster. In R. v. Bowen, 1 Car. & K. 501, which was the case of a felony not capital, upon the defendant's counsel being about to demur, Tindal, C. J., cautioned him, saying that he might be bound by his demurrer and not allowed to plead over; he did not actually deliver an opinion upon the point, but expressed great doubt upon it, and the prisoner's counsel thereupon declined to demur, and the prisoner pleaded not guilty. And Hawkins merely says, generally, that in criminal cases not capital, if the defendant demur to the indictment, the court will not give judgment against him to answer over, but final judgment. 2 Hawk. c. 31, s. 7. The following is the form of a

Demurrer to an Indictment.

And the said A. B., in his own proper person, cometh into court here, and having heard the said indictment read, saith, that the said indictment, and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that he is not bound by the law of the land to answer the same; and this he is ready to verify: Wherefore, for want of a sufficient indictment in this behalf, the said A. B. prays judgment, and that by this court here he may be dismissed and discharged from the said premises in the said indictment specified.

Joinder thereto.

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 the said indictment and the matters therein contained, are sufficient in law to compel the said A. B. to answer the same; and he, the said E. F. is ready to verify and prove the same, as the court here shall direct and award: Wherefore, inasmuch as the said A. B. hath not answered to the said indictment, nor hitherto in any manner denied the same, the said E. F. for our said Lady the Queen, prays judgment, and that the said A. B. be convicted of the premises charged upon him in and by the said indictment.

Demurrer to plea.] If the defendant plead specially, the clerk of arraigns or clerk of the peace may, in like manner, demur to the plea. And if judgment be given for the crown, it is final in cases of misdemeanor, R. v. Taylor, 3 B. & C. 502, a judgment of respondeas ouster in capital felonies, and doubtful in felonies not capital, in the same manner as in the case of a demurrer to an indictment, which I have just now noticed. The following is the form of a

Demurrer to a plea in bar.

And E. F., [the clerk of arraigns or clerk of the peace] who prosecutes for our Lady the Queen in this behalf, as to the said plea of the said A. B., by him above pleaded and set forth, saith, that the said plea and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude our said Lady the Queen from prosecuting the said indictment against him the said A. B., and that he the said E. F., for our said Lady the Queen, is not bound by the law of the land to answer the same; and this he the said E. F., who

prosecutes as aforesaid, is ready to verify: Wherefore, for want of a sufficient plea in this behalf, the said E. F., for our said Lady the Queen prays judgment, and that the said A. B. may be convicted of the premises above charged upon him in and by the said indictment.

Where in the case of a misdemeanor, the prayer of judgment was, that the defendant should answer over, instead of that he might be convicted, the court notwithstanding gave a final judgment. R. v. Taylor, 3 B. & C. 502.

Joinder thereto.

And the said A. B. saith, that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude our said Lady the Queen from prosecuting the said indictment against him; and the said A. B. is ready to verify and prove the same, as the court here shall direct and award: Wherefore, inasmuch as the said E. F., for our said Lady the Queen, hath not answered the said plea, nor hitherto in any manner denied the same, he, the said A. B. prays judgment, and that by this court here he may be dismissed and discharged from the said premises in the said indictment specified.

CHAPTER IV.

Evidence.

Having treated of the pleadings, up to the joining of issue, I shall in this chapter treat of the evidence by which that issue is to be proved; and I propose doing so under the following heads;-*

Section 1. What must be proved, and the Manner of proving it

2. Written Evidence.

3. Parol Evidence.

SECTION I.

What must be proved, and the Manner of proving it.

1. What must be proved, and by whom.

By the prosecutor.] Where the defendant pleads not guilty, the prosecutor in all cases begins to give evidence, and must

I have adopted here the same arrangement I used in treating of evidence in one of the earliest of my legal works, "A Digest of the Law relative to Pleading and Evidence

in Civil Actions," first published in 1816,-an arrangement I have followed ever since, when I have had occasion to treat of evidence in cases civil or criminal.