An acquittal on a coroner's inquisition for murder of an infant, is a bar to an indictment for concealing the birth of the same child. (h) Formerly by the 7 Will. 4 & 1 Vict. c. 85, s. 11, on the trial of any person, for any felony whatever, where the crime charged included an assault against the person, it was lawful for the jury to acquit of the felony and to find a verdict of assault against the person indicted; but that section is repealed by the 14 & 15 Vict. c. 100, s. 10, so that now, on an indictment for the assault, the acquittal on the previous charge of felony could not be pleaded. (i)

A previous summary conviction for assault before Justices under the 24 & 25 Vict. c. 100, s. 42 (j) is not a bar to a subsequent indictment for manslaughter upon the death of the man assaulted consequent upon the same assault (k); notwithstanding the provisions of the Summary Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, s. 27 (3); (1) but a person who has been summarily convicted for an assault, but has been discharged on giving security for his future good behaviour, cannot afterwards be convicted on indictment for the same assault. (m) On an indictment for stealing two pair of boots, the property of Rowland B., who was the son of John B., to whom the boots really belonged, the mistake in the ownership was discovered, and an acquittal taken, and a fresh bill describing the boots as the property of John B. having been found, the prisoner pleaded autrefois acquit to it; and on the trial of this plea Rowland B. proved that the boots were the property of his father, and that he had worked in the shop till one o'clock, when he succeeded his father in charge of the stall, from whence the boots were stolen while he was in charge, his father returning home; he was fourteen years old, and lived with and worked for his father, who supported him, but paid him no wages; it was contended that Rowland B. was a bailee of the goods, and therefore they were properly described as his property in the first indictment. Secondly. That the indictment might have been amended under the 14 & 15 Vict. c. 100, s. 1, and therefore the prisoner might have been convicted on the first indictment. But these points were overruled, and the jury found that the goods were the property of John B., and the same as those

(h) R. v. Ryland, Glouc. Sum. Ass. 1845, Atcherley, Serjeant, after consulting Tindal, C. J. MSS. C. S. G.

(i) R. v. Dingley, 4 F. & F. 99.

(5) See this sect. post, Common Assaults, Book 3, ch. 10, s. 1.

(k) R. v. Morris, 36 L. J. M. C. 84; L. R. 1 C. C. R. 90, et per Kelly, C. B., diss. De Salvi's case [reported among the cases tried at the Central Criminal Court, sess. 1857, vol. 46, p. 884] is clearly distinguishable. There the prisoner was indicted for the murder of one Robertson, and pleaded a plea of autrefois acquit, the acquittal having been upon an indictment for wounding, with intent to kill. It was clear that this acquittal might have been pronounced upon the ground of the jury having negatived the intent to kill, and yet that the prisoner might well be guilty of the murder, without an intent to kill the individual murdered, as if he had shot at another man, but un

intentionally killed Robertson. The plea,
therefore, of autrefois acquit was in that case
properly overruled: Martin, B. 'I agree
that R. v. De Salvi is not in point. The
prisoner there had been acquitted of an as-
sault with intent to murder, but convicted
of an assault with intent to do grievous
bodily harm, and was afterwards indicted for
murder upon the death of the person as-
saulted, and it was there held by the Lord
Chief Baron Pollock that murder might be
committed without any intent to kill, and
that if a man intended to maim and caused
death, and it could be made out most dis-
tinctly that he did not mean to kill, yet if he
did those acts for the purpose of accom-
plishing that limited object, and they were
calculated to produce death, and death en-
sued, that was murder, although the man
did not intend to kill.'

(1) R. v. Friel, 17 Cox, C. C. 325.
(m) R. v. Miles, 24 Q. B. D. 423.

described in the first indictment as the property of Rowland B.; and upon a case reserved, it was held that the son was not a bailee, but a servant, and that the goods remained all the time in the father's possession; and that the first indictment must be considered in the state in which it was, and not in that in which it might have been, and consequently the prisoner had been acquitted upon an indictment, upon which she never was in peril of a conviction. (n)

To an indictment against one prisoner only for receiving stolen goods a plea of autrefois acquit, upon an indictment against him and four others, on which one was convicted and the three others and himself acquitted, is good upon demurrer. To an indictment against Dann for receiving stolen goods, he pleaded that at a previous assizes, an indictment was found against two persons for stealing the said goods, and against Whitehead, Dann, and two others, for receiving the said goods, and that the two principals and Whitehead were found guilty, but Dann and the other receivers acquitted; to this plea there was a demurrer, and after consideration the following judgment, which had been prepared by Gaselee, J., was delivered at the next assizes. (o) The plea of autrefois acquit is grounded upon an ancient maxim of the common law of England, that no one ought to be brought into jeopardy of his life twice for the same offence. A great deal of learning is to be found upon the subject in 2 Hawk. P. C. c. 35, and Starkie on Criminal Pleading, p. 316, and many other books. Upon the result of all the authorities the question is, whether the prisoner could have been convicted on the former indictment, for, if he could, he must be acquitted on the second; and the law is very correctly stated to the jury by Burrough, J., in the case of R. v. Sheen. (p) It is argued for the prosecution, that an acquittal of a joint felony is not a bar to an indictment for a several felony. However that might be, if it clearly appeared upon the record that several felonies had been committed, in some of which the prisoner Dann had been jointly, and in another separately concerned, it does not appear that the present indictment is confined to any offence committed by the prisoner separately, nor is it so. Upon it he is liable to be convicted of an offence committed, separately or jointly with any other person, and consequently with Whitehead. The plea alleges that the charge in the former indictment against Whitehead and the prisoner and the other three, is the same offence as that charged in the former indictment, and this is admitted by the demurrer. The argument that the prisoner could not be convicted upon the former indictment is not true. The result of that indictment shows that it was not necessary to convict all the parties charged by that indictment. The prisoner might have been convicted either with Whitehead, or without him; nay, if the judge had called upon the prosecutor to elect against whom he would proceed (whether he did so or not the learned judge was not at liberty to consider, as nothing respecting it appears upon record), and he had elected to proceed against the prisoner, he might have been convicted

(n) R. v. Green, D. & B. 113.

(0) The case was postponed in order to consult the other judges, but they declined giving any opinion on it, as no judgment

had been given, and the case might come before some of them upon error.

(p) See note (e) p. 44.

alone, which shows he had been in jeopardy; and if the plea of autrefois acquit is not a bar, he may now be convicted of the very offence committed jointly with Whitehead, and of which Whitehead has been convicted. A replication that the charges were not the same might possibly, upon evidence, have placed the case in a very different point of view. As the record now stands, the learned judge is bound to adjudge the plea to be good, and that the prisoner be discharged.' (q)

The prisoner was charged with a larceny at common law, and also with receiving 'the goods aforesaid.' He was acquitted on the ground that the goods were a fixture, and therefore incapable of being stolen at common law. He was then indicted under 24 & 25 Vict. c. 96, s. 31, for stealing the fixture, and also with receiving the same. He pleaded autrefois acquit, but it was held that the plea was bad, since the prisoner was never in jeopardy on the first indictment either for stealing or receiving. (r)

So an acquittal upon an indictment under 24 & 25 Vict. c. 97, s. 35, and 24 & 25 Vict. 7, c. 100 s. 32, charging the prisoners with the felony of obstructing a railway with intent to endanger the safety of the passengers, was held to be no bar to a subsequent indictment under ss. 36 and 34, of the same statutes respectively, preferred on the same facts, charging them with the misdemeanor of endangering the safety of passengers by an unlawful act, since they could not be convicted of this misdemeanor on the first indictment. (s)

Where a defendant had been acquitted upon an indictment for perjury, alleged to have been committed in an affidavit, the jurat of which was not set out, and he was again indicted for perjury committed in the same affidavit, and the jurat set out, it was held that a plea of the former acquittal was good; for in the first indictment the offence was sufficiently charged without setting out the jurat. (†)

Where an insolvent debtor had been acquitted upon an indictment for omitting certain goods out of his schedule, and was again indicted for omitting those goods and some others out of his schedule; it was held that a plea of autrefois acquit was not, in strictness, a good defence to the whole of the second indictment: the prisoner might have fraudulently omitted out of his schedule the goods mentioned in the last indictment, which were not mentioned in the first, and in point of law a prosecutor might prefer separate indictments for each such omission; but excepting under very particular circumstances such a course ought not to be pursued. (u)

Where a prisoner was indicted for a simple burglary in the house of a person, for whose murder he had been acquitted, Parke, B., said, 'The charge in the indictment does not affect the life of the prisoner, as there is no allegation that the burglary was accompanied by violence. If he had been indicted for burglary with violence, as he might have been convicted of manslaughter, or even assault, on the indictment for murder, on which he was acquitted altogether, in my opinion that acquittal would have been an answer to the allegation of violence, if it had been inserted in the present indictment.' (v)

(q) R. v. Dann, R. & M. C. C. R. 424. See R. v. Barnett, vol. ii.

(r) R. v. O'Brien, 15 Cox, C. C. 29.

(s) R. v. Gilmore, 15 Cox, C. C. 85.
(f) R. v. Emden, 9 East, 437. See this

case, post, tit. Perjury.

(u) R. v. Champneys, 2 M. & Rob. 26; 2 Lew. 52, Patteson, J.

(v) R. v. Gould, 9 C. & P. 364, Tindal, C. J., and Parke, B.

The acquittal on an indictment charging the prisoner as a principal, was no defence to an indictment charging him as accessory before the fact. Plant was indicted and tried for the murder of her child, and Birchenough for having been present, aiding and abetting her in the said murder. She was found guilty, he was acquitted. They were arraigned on a second indictment, in which she was charged with the murder, he as an accessory before the fact; he pleaded autrefois acquit, referring to his acquittal on the former indictment. The prosecutor demurred; Lord Denman, C. J., thought the plea bad, and directed the prisoner to plead to the indictment, which he did, and was found guilty; and upon a case reserved, the judges were of opinion that the plea of autrefois acquit was properly overruled. (w)

Where several chattels are stolen at the same time, and a prisoner has been acquitted of stealing one of them, this acquittal is no bar to indictment for stealing another of them; for it hath happened that a man acquitted for stealing the horse hath yet been arraigned and convicted for stealing the saddle, though both were done at the same time.'(x) Where a prisoner was acquitted of uttering a forged note, it was held that he might be afterwards tried for uttering another forged note at the same time when he had uttered the former one. (y) So where the prisoner had been convicted of stealing one pig, it was held that he might be tried for stealing another pig at the same time and place. (2)

Wherever the indictment whereon a man is acquitted is so far erroneous (either for want of substance in setting out the crime, or the authority in the Court before which it was taken, as where sessions were held on a day, to which they had not been adjourned), (a) that no good judgment could have been given upon it against the prisoner, the acquittal is no bar to a subsequent indictment, because in judgment of law the prisoner was never in danger upon it: for the law will presume, prima facie, that the judge would not have given a judgment, which would have been liable to be reversed. (b) But if there be no error in the indictment, but only in the process, it seems agreed that the acquittal will be a good bar to a subsequent prosecu

in R. v. Bond, 1 Den. C. C. 517, 'I do not think it necessary, in a plea of autrefois convict, to allege the identity of the specific chattel charged to be taken. Suppose the first charge to be taking a coat; the second to be taking a pocket-book; autrefois convict pleaded; parol evidence showing that the pocket-book was in the pocket of the coat; I think that would support the plea; beeause it would show a previous conviction for the same act of taking.'1

(a) R. v. Bowman, 6 C. & P. 337.

(b) 2 Hawk. P. C. c. 35, s. 8. R. v. Turner, R. & M. C. C. 239. Vaux's case, 4 Rev. 44.

AMERICAN NOTE.

1 In America, if the two pigs had different owners, a man might be convicted of a larceny with respect to each pig; but not so if they belonged to the same owner. Indeed it should seem that if the articles stolen

were stolen at one time though belonging to different owners, the charge would be one and indivisible. (See Bishop, vol. i. ss. 1061, 1062, 1063, 1064, and the cases cited by him.)

tion, the best reason whereof seems to be, that such error is salved by appearance. (c) And if one upon an insufficient indictment for felony has judgment this judgment is a bar to a new indictment unless it be reversed on error. (d) If also a man be convicted either by verdict or by confession on an insufficient indictment, and no judgment given thereon, he may be again indicted. (e)

Where two indictments for rape were precisely in the same words, and there had been an acquittal upon one, and that acquittal was pleaded to the second; the first indictment was put in, and it was contended, on behalf of the prisoners, that it was evidence that the offence charged in the second was the same as that charged in the first; but it was answered, on the part of the Crown, that it was no evidence at all, for if the same prisoners had committed several rapes on the same woman on the same day (which was the fact here) each indictment would be in the same terms. So if a man stole twenty sheep from the same person at different times on the same day, or wounded the same person several times on the same day, each indictment would be in the same words; and of this opinion was the learned judge, (f) and this opinion has been since confirmed. (g) In the same case the commitment of the prisoners for a rape upon the prosecutrix was tendered in evidence on the part of the prisoners, and objected to on the ground that it had no bearing on the issue, as a commitment might be for one crime, and any number of indictments might afterwards be preferred for different crimes, and the learned judge was strongly of opinion that it was not admissible. (h)

(c) 2 Hawk. P. C. ibid.

(d) Vaux's case, 4 Rep. 44; 2 Hale, P. C. 248; and see R. v. Haughton, 1 E: & B. 501.

(e) Ibid.

(f) R. v. Parry, 7 C. & P. 836, 2 Moo. C. C. R. 9. S. C. Bolland, B. But he left the case to the jury, reserving the point, which, however, was not decided by the judges; see R. v. Martin, 8 Ad. & Ell. 483.

(g) Per Lord Denman, C. J., R. v. Martin, 8 Ad. & Ell. 482.

(h) R. v. Parry, supra, note (ƒ). The commitment was, however, received subject to the opinion of the judges. The jury found that the offences were the same, notwithstanding the learned judge told them that he thought there was no evidence to show that they were so; and upon a case reserved, the judges held that they could not direct the verdict to be set aside, but they did not decide any other point. A plea of autrefois acquit may be pleaded ore tenus, R. v. Bowman, 6 C. & P. 337; R. v. Champneys, ante, p. 47; R. v. Coogan, 1 Leach, 448; which means that the prisoner may state the plea, but he must do so in the proper form, the difference being that it may either be put upon parchment by the prisoner, or he may dictate it ore tenus, and it may be taken down by the clerk of arraigns, and put upon parchment by him. Patteson, J., R. v. Bowman, supra. The Court will not reject an informal plea of autrefois acquit, pleaded by a prisoner, but

VOL. I. 4

Per

will assign counsel to put it into a formal shape, 2 Hale, 241,, and postpone the trial to give time for its preparation, R. v. Chamberlain, 6 C. & P. 93, and if the record of the previous acquittal is not made up, the Court will postpone the trial to enable the prisoner to apply for a mandamus to make up the record, R. v. Bowman, 6 C. & P. 101; which mandamus the Queen's Bench will grant, although it be the record of a sessions improperly held; for the prisoner has a right to have the record of the proceedings correctly made up to make what use of it he can. R. v. Justices of Middlesex, 5 B. & Ad. 1113. The prisoner is not entitled as of right to a copy of the indictment, in order to draw up his plea, but the Court will order the indictment to be read over slowly in order that it may be taken down, R. v. Parry, supra: but the counsel for the Crown may give a copy of the indictment to save time, ibid. If a prisoner has pleaded not guilty to two indictments, and is tried and acquitted on one, the Court may grant the prisoner leave to withdraw his plea of not guilty' on the other, and plead autrefois acquit, ibid. But perhaps such leave might not be necessary, as it is conceived that a plea would be good, alleging that after the pleading 'not guilty' the defendant had been acquitted. See R. v. Taylor, 3 B. & C. 612, and the precedent of the plea in that case, 4 Ch. Cr. L. 567. It was once held that the prisoner must plead 'not guilty to the felony at the same time as