judgment, demurrers have been seldom used (n). Yet, objections at this early stage are not unfrequently taken in another and more summary shape, viz., by a motion on the part of the prisoner to quash the indictment (o); a course which, in a very clear and obvious case, the practice of the courts allows (p). And the power of bringing forward objections to the indictment at any later period, is materially limited by 14 & 15 Vict. c. 100 (2); which provides that all objections for formal defects shall be taken by demurrer or motion to quash the indictment, and not afterwards; while, by the same enactment it is directed that if upon such demurrer or motion, any merely formal defect shall be established to exist, it shall be amendable forthwith by order of the court. III. A plea in abatement, or dilatory plea, used to be founded on some matter of fact extraneous to the indictment, tending to show that it was defective in point of form; and such plea has principally occurred in the case of a misnomer; i. e. a wrong name, or a false addition to the defendant, as where James Allen, gentleman, has been indicted by the name of John Allen, esquire, and has pleaded that he has the name of James and not of John, and that he is a gentleman and not an esquire. But in the case of misnomer, no advantage at all now accrues to the defendant by a plea in abatement; for by 7 Geo. IV. c. 64, s. 19, no indictment or information shall be abated (n) It is, however, to be remarked that an objection which would be sufficient on demurrer, if not so taken is, in some cases, aided (that is cured) by an adverse verdict. See as to this, Heymann v. The Queen, Law Rep., 8 Q. B. 102; R. v. Goldsmith, ib. 2 C. C. R. 74; Bradlaugh v. The Queen, ib. 3 Q. B. D. 607. (0) The court may also quash VOL. IV. by reason of any dilatory plea of misnomer: but if the court shall be satisfied, by affidavit or otherwise, of the truth of such plea, it shall forthwith cause the indictment or information to be amended according to the truth; and shall call upon the party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded. And by 14 & 15 Vict. c. 100, s. 24, no indictment shall be held insufficient for want of, or imperfection in, the addition of any defendant. Let us therefore next consider a more substantial kind of plea, viz. IV. A special plea in bar; which goes to the merits of the indictment, and gives a reason why the prisoner ought to be discharged from the prosecution. These are principally of four kinds (). A former acquittal; a former conviction; a former attainder; or a pardon. 1. [The plea of autrefois acquit, 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 (s): 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 a competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime (t).] This however applies only to an acquittal by verdict of a petty jury (u): and therefore if a man be committed to take his (r) In the particular case where a parish is indicted for not repairing a road, or a county for not repairing a bridge, another kind of special plea in bar occurs; for the parish or county may respectively plead, in discharge of their presumptive liability, that some other party is liable to a special obligation to repair. (s) "Jeopardy of his life," is the expression of Blackstone (vol. iv. p. 335). The maxim, however, is not confined to capital felonies, and extends even to misdemeanors. See an instance of autrefois acquit pleaded in a case of misdemeanor, R. v. Taylor, 3 B. & C. 502. (t) See Beak v. Thyrwhit, 3 Mod. 194; Hawk. P. C. b. 2, c. 35, s. 10. (u) 2 Hale, P. C. 243, 246; trial for a crime at some particular assizes or sessions whereat no bill is preferred against him, he is still liable to be indicted at a subsequent assizes or sessions, for the same crime; and if the bill against him be thrown out by the grand jury, or if the petty jury having him in charge be discharged by the judge before verdict (x), he is in either case liable to be indicted again (y). The doctrine applies, also, only to the case where the first indictment was not substantially erroneous. For if it were, the former prosecution is no bar, because the defendant was never legally in jeopardy (). It is also to be observed, that, in general, the crime of which the defendant was before acquitted must be identical with that with which he now stands charged: but upon this point, distinctions of much nicety arise. Thus if a man be acquitted upon an indictment of murder, he may not only plead autrefois acquit to a subsequent indictment for the murder, but even to an indictment for the manslaughter of the same person; or è converso, if he be indicted for manslaughter, and be acquitted, he shall not be indicted for the same death, as murder; for the two cases differ only in the degree of guilt, and the fact of felonious homicide is the same (a). So if he be indicted for a murder, as having been committed on a certain day, and be afterwards indicted again for the murder of the same person on a different day, he may plead autrefois acquit, and aver it to be the same felony; for the day is not material (b). On Hawk. P. C. b. 2, c. 35, s. 6. See (x) See Winsor v. The Queen, Law Rep., 1 Q. B. 289. (y) 1 Chit. Cr. L. 458; 2 Hale, P. C. ubi supra. But the grand jury cannot, after throwing out the bill, find another bill against him for the same offence at the same assizes or sessions. (R. v. Humphreys, Carr. & M. 601; R. v. Austin, 4 Cox, C. C. 386.) (2) 4 Rep. 45, a; 2 Hale, P. C. 393. See The Queen v. Green, 26 L. J. (M. C.) 17. (a) 2 Hale, P. C. 246. (b) 2 Hale, P. C. 244. Hale adds, "Besides the death is of a DD 2 the other hand, if a man be indicted as accessory, and acquitted, that acquittal will be no bar to an indictment as principal, nor è converso. It was formerly doubted, indeed, whether he might not plead an acquittal as principal, to a second indictment charging him as accessory before the fact; but the general doctrine is now held to apply to that case also (c). For though the offence may in some respects be considered as the same, the prisoner may be convicted under the second indictment, upon facts which would not have warranted his conviction under the first (d). We may conclude our remarks on the subject of the plea of autrefois acquit, by observing that the defendant, in adopting this plea, usually also pleads at the same time the general issue, denying the felony charged; and if the former plea is found against him, the trial proceeds upon the second (e). 2. [The plea of autrefois convict, or a former conviction (whether judgment was ever given or not) for the same identical crime, is also a good plea in bar to an indictment; and this depends upon the same principle as the former, that no man ought to be twice brought into danger for one and the same crime (ƒ): and it is governed in general by the same rules (g).] person certain, who can be but once killed." The same law, however, as he himself proceeds to observe, "applies to an indictment "of robbery;" though it is possible that several robberies may be committed on several days. (c) Vide sup. p. 44. (d) See Hawk. P. C. b. 2, c. 35, s. 11; 2 Hale, P. C. 244; Fost. 361; R. v. Birchenough, 1 M. C. C. R. 477; R. v. Parry, 7 C. & P. 836. (e) See Arch. Cr. L. by Jervis, 9th ed. p. 91; R. v. Sheen, 2 Car. & P. 635; Queen v. Bird, 20 L. J. (M. C.) 70. As to this plea, and also But if the former con as to that of autrefois convict, it is provided by 14 & 15 Vict. c. 100, s. 28, that "it shall be sufficient "for the defendant to state that "he has been lawfully acquitted or convicted (as the case may "be) of the said offence charged "in the indictment." (f) Accordingly, a defence in the nature of a plea of autrefois convict applies also to offences prosecuted by some method other than indictment, as by way of summary conviction. See Wemyss v. Hopkins, Law Rep., 10 Q. B. 378. (g) Hawk. P. C. b. 2, c. 36, s. 10. viction was for a capital offence, and followed by an actual judgment of death, the regular form of this defence is,— 3. The plea of autrefois attaint, that is, a former attainder for the same crime (h); for this, also, is a good plea in bar, depending upon the same principle, and governed in general by the same rules, as the plea of autrefois convict. This plea indeed was at one time of wider application than a plea of autrefois convict simply, as it might be pleaded where a man after being attainted of one felony, was afterwards indicted for another offence; for the prisoner being considered as dead in law by the first attainder, and having therefore already forfeited all that he had, it was considered as absurd and superfluous to endeavour to attaint him a second time (i). But afterwards, by 7 & 8 Geo. IV. c. 28, s. 4, it was enacted, that no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same. offence as that charged in the indictment. 4. Lastly, a pardon may be pleaded in bar of the indictment (as well as at a later stage), as at once destroying its end and purpose, by remitting that punishment which the prosecution is calculated to inflict (j). In capital offences there was formerly one advantage that used to attend pleading a pardon in bar, or in arrest of judgment, before sentence was passed, which gave it by much the preference to pleading it after sentence or attainder. This was, that by stopping the judgment, it stopped the attainder; and prevented that corruption of blood, which used to follow in certain cases on conviction; and which could not afterwards be purged except by Act of Parliament (). But there is now, as we shall see hereafter, no such thing as corruption of blood; and as a pardon is pleadable (according to the period at which it is obtained) (h) As to attainder, vide post, p. 457. (i) 4 Bl. Com. 336; Hawk. P. C. b. 2, c. 36. () As to pardons, vide post, C. XXI. (k) 4 Bl. Com. 338. |