first count charged Henry Parry with ravishing Mary Lea, at the parish of St. Nicholas, on the 14th of *December last, and James Rea and Joseph Wright as aiders and abettors.

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Second count charged James Rea as principal, and Henry Parry and Joseph Wright as aiders and abettors.

Third count charged Joseph Wright as principal, and Henry Parry and James Rea as aiders and abet

tors.

Fourth count charged an evil-disposed person as principal, and Parry, Wright, and Rea, as aiders and abettors.

The prisoners (except Lea, who was not in custody) were arraigned and pleaded not guilty. Henry Parry, James Rea, George Jones, and Joseph Wright, were tried upon the first indictment and acquitted. To the second indictment the prisoners, Henry Parry, James Rea, and Joseph Wright, pleaded autre fois acquit, having had liberty from the Court to withdraw their plea of not guilty.

The plea of the prisoners set out the record, acquittal, and judgment on the first indictment, and went on to aver the identity of the prisoners, and the identity of the rapes and felonies in the two indictments. To this plea there was a replication, and issue was taken upon the identity of the rapes and felonies in the two indictments: a jury was empannelled to try that issue. There was a difference at the bar as to whether

the issue lay upon the Crown or on the prisoners: it appearing to the learned Baron to be upon the prisoners, he called on the prisoners' counsel to begin.

The prisoners' counsel put in the commitments of the prisoners by the magistrates to gaol for a rape upon Mary Lea, and the record of their acquittal upon the first indictment, and there closed the case.

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The learned Baron told the jury that it did not appear to him that there was any evidence that the rapes and felonies charged in the second indictment were the same identical rapes and felonies that were laid in the first indictment.

The jury returned a verdict for the prisoners.

The opinion of the Judges was requested, whether there was any evidence to justify and support the verdict, and if not, whether such verdict was final and operated as a bar to any further proceedings by the Crown upon the second indictment. The learned

Judge referred to Rex v. Huggins, 2 Lord Raym. 1584-5; Rex v. Burridge, 5 Peere Williams, 439, 498, 499, 500; Rex v. Mawbry, 6 T. R. 619.

This case was argued in Easter term, 1837, before all the Judges except GURNEY, B., and COLTMAN, J.

GREAVES for the Crown claimed to begin as matter of right, and was proceeding to argue the right, when LORD DENMAN, C. J., said, at all events we wish to

hear you.

In this case the issue of identity lay on the prisoners, and there was no sufficient evidence to sup

port the issue. The verdict found for the prisoners must be therefore set aside.

PARKE, B. Who is to order a venire de novo?

LORD ABINGER, C. B. We do not sit here as a court of appeal; we are merely assembled to advise the Judge who presided at the trial: we have no power to grant new trials.

TINDAL, C. J. We have not even a clerk or register. Have you any authorities?

GREAVES. There are cases in which such a power seems to have been exercised. It was agreed at the trial that the commitment which was contended was not evidence should be received, and the point as to its admissibility was reserved; and a second trial may be had by consent. In Rex v. Mansell, 1 Anderson, 103; Murder, 26 Eliz., the statement is, *The [*12] foreman said it was manslaughter, the others dissent, and the entry is:-"Et quia veredictum illud curiæ hic, incertum vitiosum et minimè sufficiens in lege videbatur, quæsitum est de præfato Thomâ Mansell, si velit de juratoribus prædictis, necnon de veredicto suo in formâ prædictâ reddito exonerari necne, qui dicit quod ipse contentus fuit de juratoribus illis necnon de veredicto suo prædicto, in formâ prædictâ reddito exonerari, et sic idem Thomas ex assensu suo proprio de juratoribus prædictis per curiam hic exoneratur." Agreed by all the Judges of Serjeants' Inn, who said that it had many times been down before,

which was well known by them, and that the said Thomas Mansell shall be tried again as before, and so afterwards he was, and he had judgment to be hanged. on the last verdict which found him guilty of murder. In 2 Hale, P. C. 310, it is said, "And as to an acquittal of a person against full evidence, it is likewise certain the Court may send them back again, and so in the former case to consider better of it before they record the verdict; but if they are peremptory to it and stand to their verdict, the Court must take their verdict and record it, but may respite judgment upon the acquittal." Here the judgment may be respited on their acquittal, and so the effect of it cannot be pleaded. In 4 Blackstone's Com. 361, it is said, "And if their verdict be notoriously wrong, they may be punished, and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner. Yet in many instances, where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the Court of King's Bench, for in such a case, as hath been said, it cannot be set aside by attaint. But there hath yet been no instance of a new trial where the prisoner was acquitted on the first." And there is a distinction in this case, which is a collateral issue only and an acquittal on the merits of the charge in the indictment. Rex v. Huggins, 2 Lord Raymond, 1574, only decided

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that there could not be a venire de novo after special verdict.

Here it lay on the prisoner to prove the identity of the offences. (Rex v. Sheen, 7 C. P. 634; Cogan's case, 2 Leach, 503.) GREAVES was proceeding to argue the case on the first point, when LORD DENMAN, C. J., intimated that the Judges were satisfied on that point. LUDLOW, SERGEANT, and GODSON were to have argued for the prisoners, but were not called upon.

The Judges were unanimously of opinion that nothing could be done except to discharge the prisoners.

A verdict of acquittal or conviction on a good indictment, is a bar to a subsequent prosecution for the same offence, though no judgment is entered. The State v. Norvell, 2 Yerger, 24; Mount v. The State, 14 Ohio, 295. In all cases of prosecution for crimes, in which the accused has been tried and acquitted, and his acquittal has not been procured by his own fraud or evil practice, he shall not again be put in jeopardy by a new trial, granted at the instance of the public prosecutor. The State v. Brown, 12 Conn. 54. A plea of former acquittal should state that the offence charged in the two indictments was one and the same offence; otherwise the plea will be held bad. M'Quaid v. The People, 3 Gilman, 76. A novel assignment is not admissible in a criminal case, and the proper and only mode of replying to a plea of a former conviction, is to traverse the alleged identity. Duncan v. The Commonwealth, 6 Dana, 295.