pleading over, the statute 14 & 15 Vict. c. 100, ss. 24 & 25 (d), has rendered such and some other imperfections amendable and immaterial. For the defendant judgment upon demurrer is given generally in his favour -for the crown the judgment upon a general demurrer to an indictment for felony is final (e), and judgment upon demurrer to an indictment for misdemeanor is, unless leave be given by the court to plead over, likewise final (ƒ). (742) Let us next consider a more substantial kind of plea, viz.-4. A special plea in bar; which goes to the merits of the indictment, and gives a reason why the prisoner ought not to answer it at all, nor put himself upon 4. Special plea in bar. his trial for the crime alleged. Special pleas are principally of three kinds (g): (1.) A former acquittal; (2.) A former conviction; or (3.) A pardon. (1.) The plea of autrefois acquit (h) or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy, more than once, for the same offence (i). (1.) Autrefois acquit. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon an indictment, or other prosecution, before any court having competent jurisdiction of the offence (k), he may plead such acquittal in bar of any subsequent accusation for the same crime, provided that the previous indictment were one upon which the defendant [* 429] could legally have been convicted; upon which his life or liberty was not merely imaginary, but in actual danger; and, consequently, in which there was no material error (7). The test accordingly for determining whether a plea of autrefois acquit would be proper, appears to be this-would the evidence necessary to support the second indictment have been sufficient to procure a legal conviction upon the first (m)? * Besides pleading autrefois acquit, the defendant should also in felony or treason, at the same time, plead over to the indictment. (2.) The plea of autrefois convict (n), or a former conviction for the same identical crime, is a good plea in bar to an indictment. And this depends (d) See also s. 1. (e) Reg. v. Faderman, 1 Den. C. C. 569. (f) R. v. Taylor, 3 B. & C. 502; Reg. v. Birmingham & Gloucester R. C., 3 Q. B. 224. (g) On an indictment against a parish or county for not repairing a road or bridge, a special plea in bar to throw the onus of repairing upon some person not bound of common right to repair it, may be necessary. (h) As to the form of which, see 14 & 15 Vict. c. 100, s. 28, and as to the mode of proving such a plea, see 14 & 15 Vict. c. 99, (i) 2 Hawk. P. C. chap. 23. () 2 Hale, P. C. 248; Hawk. b. 2, c. 35, s. 8; R. v. Taylor, 3 B. & Cr. 507; R. v. Clark, 1 Brod. & B. 473. (m) See Reg. v. Knight, L. & C. 378. (n) As to the form of which, see 14 & 15 Vict. c. 100, s. 28, and as to the mode of proving such a plea, see 14 & 15 Vict. c. 99, s. 13. (742) The rule in the United States is stated to be that if there is a demurrer to an indictment for a misdemeanor, and it is overruled, the judgment, unless the demurrer is permitted to be withdrawn, is final against the defendant. Com. v. Eastman, 1 Cush. (Mass.) 189, 192; State v. Rutlege, 8 Humph. (Tenn.) 32; People v. Taylor, 3 Denio, 91; Com. v. Foggy, 6 Leigh (Va.), 638. But see McCuen v. State, 19 Ark. 630; State v. Wilkins, 17 Vt. 151. In felonies the judgment is that the defendant answer over. State v. Merrill, 37 Me. 329; 1 Bish. Cr. Proced., § 784. As to the rule in Missouri, see Lewis v. State, 11 Mo. 366; Maeder v. State, id. 363; Thomas v. State, 6 id. 457; Ross v. State, 9 id. 687. And see, generally, People v. Apple, 7 Cal. 289; Wise v. State, 24 Ga. 31; Cowman v. State, 12 Md. 250. (2.) Autrefois convict. upon the same principle as the former, that no man ought to be twice brought in danger of punishment for one and the same crime (o). Hereupon it has been held, that a conviction of manslaughter, on an indictment, is a bar to another indictment for murder; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. It is to be observed, that the pleas of autrefois acquit, and autrefois convict, or a former acquittal, and former conviction, are appropriate only where there has been a former judicial decision on the same accusation in substance, and where the question in dispute has been already decided (p). (743) (3.) A pardon may be pleaded in bar (7); as at once destroying the end and (0) 2 Hawk. P. C. 377. Of the same nature with the pleas of autrefois acquit and autrefois convict seems to be the plea, to an indictment for assault, that the fact has been adjudicated on by two justices, ante, pp. 247-9. (p) Reg. v. Morris, 1 C. L. R. (C. C.) 90, 94. (q) The plea of autrefois attaint was formerly a good plea in bar, whether it were for the same or any other felony (2 Hawk. P. C. 375), because, generally, such proceeding on a second prosecution could not be to any pur pose: for the prisoner was dead in law by the first attainder, his blood was corrupted, and all that he had was forfeited: so that it was absurd and superfluous to endeavour to attaint him a second time. Now, however, by the stat. 7 & 8 Geo. 4, c. 28, s. 4, a plea setting forth an attainder shall not be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment; and hereby the plea of autrefois attaint has been practically abrogated. (743) In the United States the most important of special pleas are those of autrefois convict, autrefois acquit, and once in jeopardy. The forms of the pleadings have been much simplified by statute in many of the States, and the statutes of the particular State should be consulted. Nothing short of a record of acquittal will sustain the plea of autrefois acquit. Bailey v. State, 26 Ga. 579. But an acquittal without the judgment of the court thereon is held a bar (West v. State, 2 Zabr. [N. J.] 212); and to sustain the plea of autrefois convict, it is not necessary that judgment be pronounced on the verdict. State v. Elden, 41 Me. 165, 170. See State v. Mount, 14 Ohio, 295; Brennan v. People, 15 Ill. 511; Penn. v. Huffman, Addison (Penn.), 140; State v. Norvell, 2 Yerg. (Tenn.) 24; Preston v. State, 25 Miss. 383; Ratzky v. People, 29 N. Y. (2 Tiff.) 124; Gardiner v. People, 6 Park. 155. A former conviction or acquittal procured by the fraud of the defendant is no bar to a subsequent prosecution. State v. Green, 16 Iowa, 239; State v. Cole, 48 Mo. 70; State v. Little, 1 N. H. 268; Com. v. Alderman, 4 Mass. 477; State v. Brown, 16 Conn. 54; Com. v. Jackson, 2 Va. Cas. 501. So an acquittal on a defective or inadequate indictment is no bar. Mumford v. State, 39 Miss. 558; Black v. State, 36 Ga. 447; People v. Barrett. 1 Johns. 66; Com. v. Somerville, 1 Va. Cas. 164. But otherwise as to a conviction on such an indictment. Com. v. Keith, 3 Metc. (Mass.) 531; Com. v. Loud, id. 328. In pleading autrefois acquit or convict, the prisoner must be prepared to prove on the spot the truth of his plea by the record, which he must have in court, and vouch in support of his plea; and if this proof be not instantly given the court will overrule the plea; although, for good cause shown, it will give time to plead until the record can be procured. Com. v. Myers, 1 Va. Cas. 188, 232. If such plea is tendered by the prisoner, and the attorney for the Commonwealth demurs to it, this is an admission that the record of acquittal or convic tion was produced as it ought to have been. Id. When the plea of autrefois acquit or convict is determined against the defendant, he is, in most cases, allowed to plead over, and to have his trial for the offense itself. Foster v. Com., 8 Watts & S. (Penn.) 77; Barge v. Com., 3 Penrose & W. (Penn.) 262; Com. v. Goddard, 13 Mass. 455; Hirn v. State, 1 Ohio St. 16. The plea of" once in jeopardy" is proper in certain cases, to which the plea of autrefois acquit or convict is not adapted. Thus it has been held that where a jury in a capital case have been discharged without consent before verdict, after having been sworn and charged with the offense, the defendant, under certain limitations, may bar a second prosecution by a special plea setting forth the fact that his life has already been put in jeopardy for the same offense. Ned v. State, 7 Port. (Ala.) 187; Williams' Case, 2 Gratt. (Va.) 567; Com. v. (3.) Pardon. purpose of the indictment, by * remitting that punish[* 430] ment which the prosecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is past, which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment it stops the attainder, and prevents the corruption of blood; which, when once corrupted by attainder, cannot afterwards be restored, otherwise than by act of parliament. But as the title of "pardon" is applicable to other stages of prosecution; and it may have its peculiar force and efficacy, as well after as before conviction, outlawry, or attainder; the more minute consideration of this. will be reserved till some other titles have been gone through (r). 5. Plea of not guilty. 5. It remains that I consider the general issue, or plea of "not guilty." In case of an indictment of felony or treason, there can be no special justification put in by way of plea. Thus, on an indictment for murder, a man cannot plead that it was done in his own defence against a robber on the highway, or a burglar; but he must plead the general issue, not guilty, and give this special matter in evidence. And as the facts in treason are laid to be done proditorie et contra ligeantiæ suæ debitum, and in felony, the killing is laid to be done felonice; these charges, of a traitorous or felonious intent, are the points and very gist of the indictment, and must be answered directly, by the general negative, not guilty; and the jury upon the *evidence will take notice of any defensive matter, and give their verdict accordingly, as effectually as if it were, or could be, [*431] specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner (s). In the case of an indictment for a misdemeanor, however, the above rule, as to pleading the general issue, does not apply with the same degree of strictness; for there are some cases where a special plea is not only allowable, but even requisite. Thus, if the defendant fall within any exception or proviso, which is not contained in the purview of the statute or clause creating the offence, he may, by pleading, show that he is entitled to the benefit of that exception or proviso; and there are many pleas of this description in the ancient entries (t). But the principal, and indeed almost the only case, in which a special plea to the merits may be necessary, is where an indictment has been brought for neglecting to repair a highway or a bridge (u). By the plea of "not guilty" a defendant not having privilege of peerage is now deemed to have put himself upon the country for trial (x), and various formalities, which were formerly observed subsequent to this plea, have fallen into disuse (y). (744) (r) Post, chap. xx. (8) 2 Hale, P. C. 258. (t) 2 Leach, 606. (u) Ante, p. 196. (x) 7 & 8 Geo. 4, c. 28, s. 1. (y) The prisoner's plea of "not guilty," non culpabilis or nient culpable, was formerly ab. breviated upon the minutes, thus non (or Cook, 6 Serg. & R. 577; Com. v. Clue, 3 Rawle (Penn.), 498; Spiers' Case, 1 Dev. (N. C.) 491; State v. Garrigues, 1 Hayw. (N. C.) 241. See McCauley v. State, 26 Ala. 135; Reese v. State, 8 Ind. 416; People v. Barrett, 2 Caines, 304. And see this subject fully discussed, 1 Whart. Cr. Law, $ 573 to 590. (744) It is in the discretion of the court to allow the plea of guilty to be withdrawn, and a plea of not guilty to be entered in its stead; and this has been allowed even after the overruling of a motion in arrest of judgment. State v. Cotton, 4 Fost. (N. H.) 143. See VOL. II. 77 IV. The mode of trial. IV. The modes of trial and conviction of offenders, established by the laws of England, were formerly more * numerous than at [* 432] present, through the superstition of our Saxon ancestors: who, like other northern nations, were extremely addicted to divination; a character which Tacitus observes of the ancient Germans (2). They therefore invented various methods of purgation or trial, to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would interpose miraculously to vindicate the guiltless. 1. A very ancient (a) species of trial was that by ordeal, designated judicium Dei; and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two 1. Trial by ordeal. sorts (b), either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people (c). Both these might be performed by deputy, but the principal was to answer for the success of the trial; the deputy only venturing some corporal pain, for hire, or perhaps for friendship (d). Fire-ordeal was performed either by taking up in the hand, unhurt, a piece of red-hot iron, of one, two, or three pounds weight: or else by walking, barefoot and blindfold, over nine red-hot ploughshares, laid lengthwise at unequal distances: and if the party escaped being hurt, he was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then condemned as guilty. However, by this latter method queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character, when suspected of familiarity with Alwyn, bishop of Winchester (e). nient) cul.," and to it the clerk of the assize, (a) Jacob, L. Dict tit. "Ordeal." (c) Tenetur se purgare is qui accusatur, per Dei judicium; scilicet, per calidum ferrum, vel per aquam, pro diversitate conditionis hominum; per ferrum calidum si fuerit homo liber; per aquam, si fuerit rusticus. Glanv. 1. 14, c. 1. (d) This is still expressed in the form of speech, "going through fire and water to serve another.' (e) Tho. Rudborne, Hist. Maj. Winton, 1. 4, c. 1. State v. Salge, 2 Nev. 321. Where there are more defendants than one, each of these may plead severally not guilty; but a general plea of not guilty is, in law, the several plea of each. State v. Smith, 2 Ired. (N. C.) 402. There can be no trial on the merits in a criminal case, until the defendant has pleaded not guilty (Sartorious v. State, 24 Miss. 602); or this plea has been entered for him; which is permitted to be done by statute in each of the United States whenever the prisoner stands mute, and the trial proceeds as if he had regularly pleaded not guilty in person. See U.S. v. Hare, 2 Wheel. C. C. 299. In a proper case the plea of not guilty may be withdrawn by leave of court, preparatory to entering a plea of guilty, or to some other proceeding. Davis v. State, 20 Ga. 674; State v. Abrahams, 6 Iowa, 117. The plea of nolo contendere, though not common, is sometimes allowed in misdemeanors. So far as regards the proceedings on the indictment it has the same effect as a plea of guilty. But a plea of nolo contendere, with a protestation of the defendant's innocence, will not conclude him in a civil action from disputing the facts charged in the indictment. Com. V. Horton, 9 Pick. (Mass.) 206; Com. v. Tilton, 8 Metc. (Mass.) 232. See Com. v. Adams, 6 Gray (Mass.), 359; Birchard v. Booth, 4 Wis. 67. Water-ordeal was performed, either by plunging the * bare arm up to [* 433] the elbow in boiling water, and escaping unhurt thereby: or by being cast into a river or pond of cold water; and, if the suspected person floated therein without any action of swimming, it was deemed an evidence of his guilt; but, if he sunk, he was acquitted. It is easy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity formerly practised to discover witches by casting them into a pool of water, and drowning them to prove their innocence. And in the Eastern empire the fire-ordeal was used to the same purpose by the Emperor Theodore Lascaris; who, attributing his sickness to magic, caused all those whom he suspected to handle the hot iron: thus joining (as has been well remarked (ƒ)) to the most dubious crime in the world, the most dubious proof of innocence. This purgation by ordeal was known to the ancient Greeks; for in the Antigone of Sophocles (g), a person, suspected by Creon of a misdemeanor, declares himself ready "to handle hot iron, and to walk over fire," in order to manifest his innocence; which, the scholiast tells us, was then a very usual purgation. And Grotius (h) gives us instances of water-ordeal in Bithynia, Sardinia, and other places. One cannot but be astonished at the folly and impiety of pronouncing a man guilty, unless he was cleared by a miracle; and of expecting that all the powers of nature should be suspended by an immediate interposition of Providence to save the innocent, whenever it was presumptuously required. And yet in England, so late as king John's time, we find grants to the bishops and clergy to use the judicium ferri, aquæ et ignis (i). And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated *ground: for which Stiernhook (k) [* 434] gives the reason; "non defuit illis operæ et laboris pretium; semper enim ab ejusmody judicio aliquid lucri sacerdotibus obveniebat." But, to give it its due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, "cum sit contra preceptum Domini, non tentabis Dominum Deum tuum (1)." Upon this authority, though the canons themselves were of no validity in England, it was thought proper to disuse and abolish this trial entirely in our courts of justice, by an act of parliament in 3 Hen. III. according to sir Edward Coke (m), or rather by an order of the king in council (n). 2. Trial by the corsned. 2. Another species of purgation, somewhat similar to the former, but probably sprung from a presumptuous abuse of revelation in the ages of dark superstition, was the corsned, or morsel of execration: being a piece of cheese or bread, of about an ounce in weight, which was consecrated with a form of exorcism; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishment, if he was innocent (0); as the water of jealousy among the Jews (p) was, by God's special appointment, to cause the belly to swell, and the thigh to rot, if the woman was guilty of (f) Montesquieu, Sp. L. b. 12, c. 5. (g) V. 270. (h) On Numb. v. 17. (i) Spelm. Gloss. 435. (k) De Jure Sueonum, 1. 1, c. 8. (1) Decret. pt. 2, caus. 2, qu. 5, dist. 7; De cretal. lib. 3, tit. 50, c. 9, & Gloss. io. (m) 9 Rep. 32. (n) 1 Rym. Fod. 228; Spelm. Gloss. 326; 2 Pryn. Rec. Append. 20; Seld. Eadm. fol. 48. (0) Spelm. Gl. 439. (p) Numb. chap. v. |