HAYWOOD, J. The question to be determined in this case is, whether a plea of acquittal or conviction, without judgment being rendered thereon, in a criminal case affecting life or limb, is a good plea in bar of a second prosecution for the same offense. The bill of rights in this state (section 10) declares that no person shall for the same offense be twice put in jeopardy of life or limb. The prisoner ought not to be again tried, though judgment be not pronounced, if there be a verdict of not guilty upon a sufficient indictment; otherwise he might again be indicted and tried, though he had the verdict of not guilty in his hand, merely because the court might not think proper to pronounce judgment upon it; and notwithstanding this clause in our bill of rights, in factious times, a man, for want of a judgment which the court would not pronounce, might be tried again and again, until a jury were found who would convict him. If the courts in England are intrusted with such power, and by not giving judgment can deprive the subject of the benefit of a verdict of not guilty, because that alone without judgment is not a sufficient plea, there is no court in this country intrusted with the same power, it being directly in opposition to our constitution; and therefore, whether a court delayed to render judgment or not, it is the same thing to the prisoner. The verdict of itself is an eternal protection against all other indictments for the same offense. Can any court set aside such a verdict? The clause in our constitution before referred to is a negative of such power. It has not been-it never will be done so long as this part of our constitution remains in force. If the verdict can not be taken from the prisoner directly, neither can it indirectly by the failure of the court to give judgment upon it. We must follow the constitution and its spirit; not the forms of English precedents. This is the more necessary in this country, because it has not been the general practice of the clerks to enter up the formal judgment of eat inde sine die upon verdicts of acquittal. What is to be done then? Shall the prisoner plead the judgment, and will the court understand that the entry actually made was the same as a judgment of eat inde sine die; or will the court say that the entry actually made is not the same as eat inde sine die, etc., and suffer the prisoner to be tried again upon the same charge? Surely, not the latter! We shall be obliged to adopt the former cause if a judgment must be pleaded. In any point of view, then, the plea of a verdict of not guilty alone is sufficient in this state, since the formation of the constitution, to

bar a second indictment for the same offense. The plea in this case is admitted by the demurrer; it states a good and sufficient indictment upon the former trial, and acquittal by verdict upon it of the murder therein charged.

But are the English precedents as they are contended to be? Do they require the judgment to be rendered up before the acquittal can be pleaded in bar?

With respect to an acquittal upon an insufficient indictment, what Hale says, 2 Hale P. C. 248, professes to be founded on 4 Rep. 45, and is not supported by it. The concluding words of the report, which must be those referred to, do not relate to a former acquittal at all; and where he says, Id. 243, there must not only be an acquittal, but a judgment thereon of eat inde sine die to make a good bar, he does not refer to any precedent..

Blackstone, in treating on this subject, 4 Bl. Com. 329, forbears to cite Hale, but refers to Hawkins, which is a strong intimation that he had some objection to what Hale had stated, and then he proceeds to lay down the doctrine in broad terms, that when a man is once found not guilty, he may plead such acquittal in bar of a second indictment. This is the most rational doctrine, for otherwise the court, by taking an adversare upon a verdict of acquittal, might wholly deprive the prisoner of the benefit of his verdict. Hale admits that the verdict is a warrant for entering the judgment, but the result of his doctrine is that if the entry of the formal judgment be neglected, or refused to be entered up, the prisoner may lose his life by the omission. Without doubt the court would not suffer such a consequence, but would order the judgment to be entered nunc pro tunc, as a matter of course, and would not for a mere formal omission affect life.

When a man indicted for murder is found not guilty of murder, but guilty of manslaughter, he never can again be indicted for murder for the same offense, if the first indictment were a good one. The former acquittal will be a bar, no matter what became of the conviction of manslaughter. For if he could be tried upon a second indictment of murder, he might upon such second trial be found guilty of murder. And shall he be forced to incur that risk, in order to see whether he be guilty of manslaughter or not. If he could be indicted at all, it can only be by an indictment of manslaughter, and not by an indictment of murder: 2 Hale P. C. 246. The acquittal, if

1. Advisari.

not a bar to an indictment of manslaughter, would certainly be so to an indictment for murder. And if not a bar to an indictment of manslaughter, the prisoner would be driven to rely on his former conviction of manslaughter. All that is now said is said in reference to an acquittal upon a good indictment, taking it for granted that an acquittal upon a bad one would not be a bar.

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It may not be amiss here to say something with respect to the conviction of manslaughter. What Hale says on this point: 2 Hale P. C. 248, is not warranted by the concluding part of Vaux's case, for that only says, a man who is convicted either by verdict or confession, upon an insufficient indictment, and no judgment thereon given, may be again indicted," etc. In Hale it is stated that a former conviction is no plea unless judgment be given upon it, not confining this position to insufficient indictments, as he seems to do at page 251. In the case of an insufficient indictment, it is true, if there be only a conviction, that it will not be a bar to a second indictment, which is a sufficient one, though if judgment were given it would be a bar if clergy were allowed; therefore, to be a bar the plea must state such judgment. In 4 Rep. 45, the court only had in view the case of an insufficient indictment and conviction upon it without judgment. It does not in the least contradict 4 Bl. Com. 330, which treats of a conviction upon a good indictment, and held it to be a bar, whether judg ment be given upon it or not. The conviction pleaded in the present case, is one upon a good indictment, and is not to be upturned by authorities which relate to a conviction upon a bad one.

But it is said a person may be indicted for murder, and be found not guilty of the murder, but guilty of manslaughter; and might be erroneously discharged by the court, by arresting the judgment upon the ground of insufficiency in the indictment, in which case the grounds or reasons of the discharge would not appear on the statement of a conviction only. The plea must state or set out the first indictment, from which the court can tell whether it is a good one or not; and the judgment of the circuit court in arresting the judgment upon the conviction, it is conceived, would remain in force until reversed: 2 Hale P. C. 247. But still both indictments being sufficient, he was in jeopardy upon the first. For if the court, upon the plea of a former conviction, look into the indictment pleaded, and see that it is bad, and consequently the plea also, they may

at the same time equally see that the indictment is good, if it really be so, and ought to be declared so, though the court which gave the judgment upon the conviction thought otherwise. And if good, it follows that he can not be tried upon the second; for the first judgment of arrest may be reversed upon error, and judgment be pronounced upon the conviction, in which case he would be liable to be punished twice for the same offense.

Again, suppose the prisoner brought to trial upon the second indictment and convicted; if the court are bound to say the first indictment was bad, because the former court had said 80; would not the second indictment, conceived in the same words, be bad also? And being bad, would not the court be bound to give the same judgment precisely that the former court gave? In which event, all the proceedings upon the second indictment must necessarily be void, and the court ought not to proceed upon it. Then it follows, that whether the judgment be arrested or not upon the first verdict of conviction, if the indictment was good, the consequence is the same in law, and of course, pleading the judgment is immaterial, and is necessary in no case of a conviction upon a good indictment. Suppose the first judgment of discharge be afterwards reversed for error, must not the reversing court proceed to give such judgment as the court below ought to have given, and call the defendant to judgment again? And if called, can he plead the proceedings in the latter indictment, in bar of any other proceeding on the first? These considerations, but imperfectly dwelt upon, will make it apparent that judgment arrested upon a good indictment will not make the prisoner liable to a second indictment, any more than he would be after conviction only; and therefore that it can not be material to state it in a plea in bar, since the statement or the omission will lead to the same termination precisely. In civil cases, the general rule, as stated at the bar, is certainly correct, that there must be judgment on the verdict, to authorize it to be pleaded in bar: Buller's N. P. 234; 3 East, 351; Willes, 368. But the reason of the rule wholly fails, when applied to criminal causes.

EMMERSON, J., concurred.

WHYTE, J., gave no opinion.

In Slaughter v. State, 6 Humph. 414, the decision in the principal case, that a verdict of acquittal upon a good indictment is a bar to any subsequent trial, although no judgment was ever entered upon such verdict, is approved.

In State v. Cameron, 3 Heisk. 78, an acquittal on an indictment for embezzlement of the revenue, by "falsely pretending that said revenue was taken from him (the defendant) by robbery," was held a bar to a subsequent in. dictment for failing to pay over the same moneys, citing principal case. In Mikels v. State, Id. 321, a plea of former conviction before a justice of the peace, under the small offense law, was held not a good bar to an indictment for a felonious assault, also citing principal case.

JEOPARDY.-For an extended discussion of when a person has once been in jeopardy, see State v. McKee, 21 Am. Dec. 505, note, and cases there cited. See Crenshaw v. State, 17 Id. 791, for a discussion of the question as to when the conviction for one felony bars the prosecution of others.

AMIS V. KYLE.

[2 YERGER, 31.]

AT COMMON LAW ACTS PERFORMED ON SUNDAY were valid, unless expressly prohibited, and consequently contracts made, work and labor done, and even business of one's ordinary calling, were not considered by it illegal, because performed on that day.

Statute of 1741, c. 14, Sec. 2, OF THIS STATE, prohibits work and labor of one's ordinary calling from being performed on Sunday, but does not extend to all kinds of labor indiscriminately.

TENDER OF CHATTELS ON SUNDAY, in performance of a contract, is legal both at the common law and under such statute; and therefore where the day of performance falls on Sunday, a tender on the next day is too late.

THE facts are stated in the opinion.

By COURT. This was an action of covenant brought upon a sealed instrument for the payment and delivery of horses, six months after the date. The day of payment and delivery fell upon Sunday, and the defendant pleaded a tender and refusal on the day following, to wit, on Monday; to which plea the plaintiff demurred. The question is, was the tender a good one in law to discharge the obligation; all other requisites to constitute it a good tender being admitted, the time only being excepted to. The tender not being made at the time agreed upon by the parties, will not excuse the breach of stipulation secured by the covenant in general cases; and therefore it was argued that Sunday not being a day for the transaction of worldly business, the day next following, or the day next preceding, must in law be deemed the day for the performance of the covenant, and consequently the plea exhibited facts amounting to a specific defense against the plaintiff's action.

In the decision of this question, it will first be necessary to