FORMER CONVICTION.

Where a justice of the peace, after first binding the defendant to court for assault with serious damage, afterwards attempts to reverse his decision and fines the defendant, the latter proceeding is a nullity, and will not support a plea of former conviction. Lucas, 139-567.

When defendant, after learning of an indictment against him in the superior court for assault and battery but before being arrested, procures himself to be indicted in the county court and there voluntarily submits and is fined, the plea of former conviction is good against the indictment in the superior court. Casey, 44 (Busb.), 209.

In order to show the identity of the cases, it is competent for defendant to prove by one who was not a witness on the former trial what a witness who was examined on behalf of the state on that trial deposed to, though such witness is still alive and within the county. Smith, 33 (11 Ired.), 33. Where an assault and battery is committed in a riot, on indictment for the riot a plea of former conviction for the assault and battery will operate as a bar to the indictment for the riot, since the state can not divide an offense consisting of several trespasses into as many indictments as there are acts of trespass. Ingles, 3 (2 Hay. Rep.), 148 (8).

Where two are indicted for an affray, and one pleads former conviction, which plea is tried before the plea of not guilty, the other defendant has never been in jeopardy, and may be tried for the offense. Weaver, 93-595.

Conviction for a riot is a bar to a prosecution for an assault committed in the riot, and which was given in evidence on the trial for the same. Lindsay, 61 (Phil. Law), 468.

A person may be convicted for an assault and battery committed in the presence of the court, though he had previously been fined for contempt of court in doing the same act, since the same act constitutes two offenses, one against the court, and the other against the public peace. Yancey, 4 (Repos. & Tay. T.), 133.

Former conviction or acquittal must be pleaded to be available. Chancey, 110-507.

Regularly the two pleas of "former conviction" and "not guilty" should be tried separately, since the former implies an admission of the criminal act and is inconsistent with an absolute denial. Winchester, 113-641.

But the practice of trying the two pleas together is common and convenient, and where there is no exception on that ground it will be presumed that the course was pursued with the consent of defendant. Winchester, 113

641.

Where the defendant in a warrant for bastardy, having agreed upon terms of settlement with the prosecutrix, paid the costs and the justice who issued the warrant burned the papers and did not docket the warrant or other proceedings or render any judgment and the defendant was discharged: Held, that such facts did not establish a case of former trial and conviction, or bar a subsequent prosecution for the same offense. Robertson, 1221045.

A conviction for assault with a pistol will not sustain a plea of former conviction in a subsequent trial for carrying the pistol concealed. Robinson,

116-1046.

A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt defendant from prosecution and punishment under the other. Robinson, 116-1046.

Where defendants are bound to keep the streets of a town in repair, and if several streets are presented the same day, a conviction on one, where separate bills are found, may be pleaded in bar of the others. Commissioners, 6 (2 Murph.), 371.

Where, on motion in arrest of judgment, the court sets the verdict aside and a new trial is had upon another bill, a plea of former conviction can not be sustained, since if the first indictment was so defective as to warrant arrest of judgment the defendant can not be considered as having been in jeopardy. Lee, 114-844.

A defendant can not plead former conviction and not guilty, since the two pleas are inconsistent. Potter, 61-338.

Conviction for a riot will be a prosecution for assault and battery committed in the riot. Lindsay, 61-468.

Proof of a conviction for an affray will sustain a plea of former conviction on indictment for assault and battery for the same offense. Stanly, 49-290. The defendant may prove by one who was not a witness on the former trial what a witness who was examined for the state testified, though the witness is then within the jurisdiction of the court, in order to show the identity of the two cases. Smith, 33 (11 Ired.), 33.

Where there is no evidence on a plea of former conviction, except an inspection of the record, and the record does not sustain the plea, the court may direct a verdict, or if a verdict sustaining the plea is returned the court may set the verdict aside. Ellsworth, 131-775.

The plea of former conviction should not be tried with the plea of not guilty, since the plea of former conviction is a confession and the two are inconsistent. Ellsworth, 131-774.

An order setting aside a verdict on preliminary trial of a plea of former conviction is reviewable only on appeal from a judgment on the merits. Ellsworth, 131-773.

The trial of a plea of former conviction before trial on the merits is an interlocutory proceeding and not the subject of a subsequent plea of former jeopardy. Ellsworth, 131-773.

Where the verdict on a plea of former conviction is contrary to the weight of the evidence it may be set aside and a new trial ordered. Ellsworth, 131

773.

The burden is on the defendant to sustain a plea of former conviction. Ellsworth, 131-773.

Where the trial court sustains a plea of former conviction and enters a judgment of not guilty, without striking out a verdict of guilty which had been rendered in the case, it may, on reversal, proceed to enter judgment on the verdict. Taylor, 133-755.

A conviction for violating a town ordinance punishing the disurbance of the good order and quiet of the town by fighting, is not a bar to a prosecution for an assault. Taylor, 133-755.

Where a plea of former conviction is sustained after verdict of guilty, the proper practice is to strike out the verdict and sustain the plea as upon a demurrer by the state. To enter a judgment of not guilty upon the verdict is improper. Taylor, 133-755.

Where a defendant swears out a warrant against himself, and the justice of the peace, without notice to the injured party or any one else, and without hearing any testimony except the defendant's own statement, disposes of the case, such a trial is a nullity, and will not support a plea of former conviction. Moore, 136-581.

The conviction of a person before a justice of the peace which is collusive. and not adversary, is not sufficient to sustain a plea of former conviction." Moore, 136-581.

FORMER JEOPARDY.

FORMER JEOPARDY-DISCHARGE OF PRISONER.-In a case where three persons were on trial for murder, the prisoners proposed that they should be examined as witnesses for each other. The state objected, but the court allowed the motion, and thereupon the solicitor appealed, and the court to allow him such appeal, against the objection of the prisoners, withdrew a juror and made a mistrial: Held, to have been an erroneous exercise of discretion, and that thereupon the prisoners were entitled to a discharge. Prince, 63-529.

Where the judge is absent from the court and telegraphs the clerk to withdraw a juror, make a mistrial and discharge the jury, and the clerk does so, the prisoner is entitled to be discharged. It is the duty of a judge to be personally present in court, and find judicially the facts upon which his conclusions are based. Jefferson, 66-309.

Where the court orders a mistrial on the ground that one of the jurors has fraudulently procured himself to be selected at the instance of the prisoner to secure an acquittal, there has been no jeopardy, and an order remanding the prisoner for another trial is proper. Bell, 81—591.

The discharge of a jury before verdict in a capital case, on Monday of the second week of the term and before the term expired, after a deliberation of forty-five hours, is erroneous, and entitles the prisoner to his discharge. Alman, 64-364.

Where a juror is withdrawn and a mistrial ordered, the prisoner may be put to a second trial upon the same bill. Washington, 90-664.

The jury were out considering their verdict for ten days, but came into court twice, and, being polled each time, declared they would never agree. and the court directed a juror to be withdrawn and a mistrial entered: Held, no error, and that the prisoner had never been in jeopardy. Carland, 90-668.

Where the jury returns an insensible verdict it is proper for the court to instruct them again, and where upon further instruction they fail to agree from Tuesday to Saturday night, when the term would expire, an order of mistrial is proper. Whitson, 111-695.

Where a mistrial is ordered in a capital case the judge must find the facts and spread them on the record so that his action may be reviewed. Guthrie, 145-.

Where the jury, in a capital case, are allowed to separate without agreeing upon a verdict the prisoner can not again be put on trial. Garrigues,

2-241.

A mistrial in a case not capital is a matter of discretion, and a plea of former jeopardy because of a mistrial ordered on a former trial of a defendant for the same offense can not be sustained. Collins, 115-716.

Putting in jeopardy means a jeopardy which is real and has continued through every stage of one prosecution. Ellsworth, 131-777.

A plea of former jeopardy is not sustained by showing a nolle, nor by a nolle after the trial has commenced when the defendant does not claim a verdict, nor by a discharge of a jury in case of the sickness of the judge, the sickness of a juror and the like. Ellsworth, 131-777.

Where a mistrial is ordered in a capital case because a juror is found, during the argument, to be in such a drunken condition as to be incapacitated for further service, a plea of former jeopardy at a subsequent term can not be sustained. Tyson, 138-627.

In capital cases it is the duty of the trial judge to find the facts fully and place them upon the record so that upon a plea of former jeopardy his action may be reviewed. Tyson, 138-627.

FORNICATION AND ADULTERY.

Sec. 352 (3350). Fornication and adultery.

If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.

Code, s. 1041; R. C., c. 34, s. 45; 1805, c. 684.

INDICTMENT. An indictment which alleges that defendants "did unlawfully and adulterously bed and cohabit together," is sufficient without an averment that they were not married, or that they were male and female, since the averment of the adulterous intercourse implies the absence of the marriage relation and also implies that the parties are of different sexes. Lashley, 84-754.

An indictment which charges that defendants, not being united in marriage "unlawfully did associate, bed and cohabit together, and then and there did commit fornication and adultery," is sufficient, since the language used must imply that they did "lewdly and lasciviously associate." Stubbs, 108774.

An indictment charging that defendants "did unlawfully and adulterously bed and cohabit together, and then and there did unlawfully commit fornication and adultery," is sufficient. Tally, 75-322.

The indictment need not allege that either of the defendants had ever taken the other into his or her house and that they had lived together. Jolly, 20 (3 D. & B.), 110.

Judgment can not be arrested because one of the defendants, a married woman, is described as "spinster." Guest, 100–410.

The indictment must either allege that the defendants are not married or that the cohabitation was adulterous. Alridge, 14 (3 Dev.), 331.

The bill must negative the relationship by marriage. Dickinson, 18 (1 D. & B.), 348.

EVIDENCE. The evidence was that the male defendant, an orphan and a cripple, when ten years old went to live with one H, with whom the female defendant resided; that she assisted in caring for him, and at H's death both defendants moved to another place and have since lived together in a house in which there were three beds; that they are aged, the male 23, the female 50 years; and a witness testified that he went there one morning at 4 o'clock and saw the female in one bed, the other beds in the room not tumbled, and the male was up and dressed, but witness did not know where he stayed that night. It was not shown that there was but one room in the house: Held, that the evidence was not sufficient to warrant a verdict of guilty. Waller, 80-401.

Defendant denied his guilt and swore that he was surprised at the charge when he first heard of it, and that his wife had never made such a charge or referred to it: Held, that it was competent to prove by a witness defendant's admission that he did know of the charge prior to the time to which he had sworn, and that he had been charged by his wife with the offense. Crane, 110-530.

Where various independent circumstances are relied on by the state, an instruction that the jury must be satisfied upon the whole evidence is sufficient. Crane, 110-530.

Evidence was offered tending to prove that the male defendant, white, and the female defendant, colored, had several times been seen riding together in the male defendant's vehicle; that they frequently ate at the same table; that the female defendant, who was a married woman, but who had left her husband, had given birth to two children after separating from her husband; that the male defendant had been seen nursing and playing with them, and had his picture taken with theirs, and that the female defendant employed servants for both: Held, sufficient to warrant a conviction. Chancy, 110-507.

More than two years before the indictment the male defendant was seen taking very indecent liberties with the female defendant, and she, on being remonstrated with, said in the presence of the other defendant, "it was pretty much as they had done." There was evidence that they lived half a mile apart, and they continued to associate with each other after the act described for a year, in which time the male defendant visited her house often twice a week: Held, that the evidence was sufficient to be submitted to the jury. Dukes, 119-782.

Evidence of facts transpiring after the finding of the bill and tending to show guilt is admissible. Roby, 121-682.

Where evidence of adulterous intercourse in another county is shown in connection with evidence of such acts in the county in which the action is tried, the defendants can not be convicted for the acts committed in another county, and a failure of the judge to so charge upon request, is error. Beard,

124-811.

While evidence of an act of illicit intercourse occurring more than two years before the indictment is not competent as substantive testimony, it may be considered, if believed, as corroborative evidence of subsequent association. Dukes, 119–782.

Evidence that defendants were seen working together in a field, although slight, is competent as tending to show, with other circumstances, that defendants are living together in adultery. Roby, 121-682.

Evidence that defendants lived together about three months before they were married and had prior to that time moved to a distant place and had returned is sufficient to be submitted to the jury. Roby, 121-682.

A photograph of defendant was introduced, on the back of which, signed with his name, were words purporting to be a marriage to his wife and indicating that the one to whom the message was addressed was married, and the alleged wife, the prosecutrix, testified that the writing was that of the defendant and that the photograph had been sent to her: writing was admissible as an acknowledgment of marriage. 797.

Held, that such
Behrman, 114—

A paper-writing purporting to be a contract of marriage, and to be signed by the contracting parties at the time of the alleged marriage, is admissible, not only in corroboration of a witness who testified to the facts, but also as substantive evidence to prove the marriage. Behrman, 114–797.

Where the material issue was whether the prosecuting witness and defendant were married in a foreign country, a certificate by the officiating rabbi, attesting the marriage and certified by the signature and seal of the official minister of such foreign country, although inadmissible as a record or an independent declaration of the rabbi, it was competent as part of the res gesta to support the testimony of the prosecuting witness as to the fact of the marriage. Behrman, 114–797.

Evidence that the female defendant told a witness for the state, before the indictment, that her brother had driven her away from home, and that her father had paid the male defendant, who had married her cousin, to take her on his farm as a work-hand, is inadmissible, since what a party says exculpatory of himself after the offense was committed, and not part of the res gesta, is not evidence for him. Stubbs, 108-774.