and the repugnance of its theory (for it was rarely carried into practice) to the humanity of the laws of England, all concurred to require a legislative abolition of this cruel process, and a restitution of the ancient common law: whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge. Or, if the corruption of the blood and the consequent escheat in felony had been removed, the judgment of peine forte et dure might perhaps have still innocently remained, *as a monument of the savage rapacity with which the lordly tyrants of feudal antiquity hunted [*329] after escheats and forfeitures; since no one would ever have been tempted to undergo such a horrid alternative. For the law was, that by standing mute, and suffering this heavy penance, the judgment, and of course the corruption of the blood and escheat of the lands, were saved in felony and petit treason, though not the forfeiture of the goods: and, therefore, this lingering punishment was probably introduced, in order to extort a plea: without which it was held that no judgment of death could be given, and so the lord lost his escheat. But in high treason, as standing mute is equivalent to a conviction, the same judgment, the same corruption of blood, and the same forfeitures always attended it, as in other cases of conviction. (e) And very lately, to the honour of our laws, it hath been enacted by statute 12 Geo. III, c. 20, that every person who, being arraigned for felony or piracy, shall stand mute or not answer directly to the offence, shall be convicted of the same, and the same judgment and execution (with all their consequences in every respect) shall be thereupon awarded, as if the person had been convicted by verdict or confession of the crime. (4) And thus much for the demeanor of a prisoner upon his arraignment, by standing mute; which now, in all cases, amounts to a constructive confession. II. The other incident to arraignments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment: but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment. (ƒ) But there is another species of confession, which we read much of in our ancient books, of a far more complicated kind, which is called approvement. And that is when a *person indicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded; and appeals or [*330] accuses others, his accomplices, of the same crime, in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it: and if he hath no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battel, or by the country; and if vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debito justitia. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz., the convicting of some other person, and therefore his conviction remains absolute. But it is purely in the discretion of the court to permit the approved thus to (4) [Two instances have occurred since the passing of this statute, of persons who refused to plead, and who in consequence were condemned and executed. One was at the Old Bailey, for murder, in 1777; the other was for burglary, at the summer assizes at Wells, in 1792.] The practice now, since the statute 7 and 8 Geo. IV, c. 28, is for the court to enter a plea of not guilty for the accused party. See notes, pp. 324 and 325, supra. 501 appeal or not: and, in fact, this course of admitting approvements hath been long disused: for the truth was, as Sir Mathew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein (g) though, since their discontinuance, the doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that all the good, whatever it be, that can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, housebreaking, horse stealing, and larceny to the value of five shillings from shops, warehouses, stables, and coach-houses, by statutes 4 and 5 W. and M. c. 8, *6 and 7 Wm. III, c. 17, 10 and 11 Wm. III, c. 23, and 5 Ann. c. 31, [*331] which enact, that if any such offender, being out of prison, shall discover two or more persons, who have committed the like offences, so as they may be convicted thereof; he shall in case of burglary or house-breaking receive a reward of 401., and in general be entitled to a pardon of all capital offences, excepting only murder and treason; and of them also in the case of coining. (h) And if any such person, having feloniously stolen any lead, iron, or other metal, shall discover and convict two offenders of having illegally bought or received the same, he shall by virtue of statute 29 Geo. II, c. 30, be pardoned for all such felonies committed before such discovery. (5) It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows; upon an implied confi dence, which the judges of gaol-delivery have usually countenanced and adopted that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree. (i) (6) (g) 2 Hal. P. C. ch. 29. 2 Hawk. P. C. ch. 24. The pardon for discovering offences against the coinage act of 15 Geo. II, c. 28, extends only to all such offences. (i) The King v. Rudd; Mich. 16 Geo. III, on a case reserved from the Old Bailey, Oct. 1775. (5) The statutes here mentioned are since repealed. (6) [It has now been solemnly decided that an accomplice admitted as king's evidence, and performing the condition on which he is admitted as a witness, is not entitled, as matter of right, to be exempt from prosecution for other offences with which he is charged, but that it will be matter in the discretion of the judge whether he will recommend him for a pardon or not. Rex v. Lee, R. and R. C. C. 361. Rex v. Brunton, id. 454. Even the equitable claim of an accomplice to a pardon, on condition of his making a full and fair confession, does not extend to prosecutions for other offences in which he was not concerned with the prisoner: with respect to such offences, therefore, he is not bound to answer on cross-examination. Lee's, Duce's, and West's Cases, 1 Phil. Ev. 37. But the judges will not, in general, admit an accomplice as king's evidence, although applied to for that purpose by the counsel for the prosecution, if it appear that he is charged with any other felony than that on the trial of which he is a witness. 2 C. and P. 411; Car. Cr. L. 62. Where an accomplice is confirmed in his evidence against one prisoner, but not with respect to another, both may be convicted, if the jury think the accomplice deserving of credit. Rex v. Dawber and others; 2 Stark. N. P. C. 34; Car. Cr. L. 67. 2d ed. And see Rex v. Dawber, 3 Stark. 34, 35, n., where it is said, that if the testimony of an accomplice be confirmed so far as it relates to one prisoner, but not as to another, the one may be convicted on the testimony of the accomplice, if the jury deem him worthy of credit. An accomplice does not require confirmation as to the person charged, provided he is confirmed in the particulars of his story. Rex v. Birkett and Brady, R. and R. C. C. 251. And the corroboration of his evidence need not be on every material point, but he must be so confirmed as to convince the jury that his statement is correct and true. Rex v. Barnard, 1 C. and P. 88. A person indicted for a misdemeanor may be legally convicted upon the uncorroborated evidence of an accomplice. Rex v. Jones, 2 Camp. 132. So may a person indicted for a capital offence. Jordaine v. Lashbrook, 7 T. R. 609. But the testimony of accomplices alone is seldom of sufficient weight with a jury to convict the offenders; the temptation to commit perjury being so great, where the witness by accusing another may escape himself. The practice, therefore, is to advise the jury to regard the evidence of an CHAPTER XXVI. OF PLEA AND ISSUE. We are now to consider the plea of a prisoner, or defensive matter alleged by him on his araignment, if he does not confess or stand mute. This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue. Formerly, there was another plea, now abrogated, that of sanctuary; which is however necessary to be lightly touched upon, as it may give some light to many parts of our ancient law: it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First, then, it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned,) had fled to any church, or church yard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence; and thereupon took the oath in that case provided, viz., that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return without leave from the king; he by this means saved his life, if he observed the conditions of the oath, by going with a cross in *his hand, and, with all convenient speed, to the port assigned, and embarking. [*333] For if, during this forty days' privilege of sanctuary, or in his road to the seaside, he was apprehended and arraigned in any court, for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out, against his will. (a) But by this abjuration his blood was attainted, and he forfeited all his goods and chattels. (b) The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII, c. 19, and 32 Hen. VIII, c. 12. And now, by the statute, 21 Jac. I, c. 28, all privilege of sanctuary, and abjuration consequent thereupon, is utterly taken away and abolished. Formerly also the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea; which was the name also given to that of sanctuary. (c) But, as the prisoner upon a trial has a chance to be cquitted, and totally discharged; and, if convicted of a clergyable felony, is entitled equally to his clergy after as before conviction: this course is extremely disadvantageous; and therefore the benefit of clergy is now very rarely pleaded; but, if found requisite, is prayed by the convict before judgment is passed upon him. (1) I proceed, therefore, to the five species of pleas before mentioned. LA plea to the jurisdiction, is where an indictment is taken before a court that hath no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions: in these, or similar (a) Mirr. c. 1, § 13. 2 Hawk. P. C. 335. (b) 2 Hawk. P. C. 52. (c) 2 Hal. P. C. 236. accomplice, only so far as he may be confirmed, in some part of his testimony, by unimpeachable testimony. Phil. ev. 34, 3d ed. And see id. c. 4, § 2, and the several authorities there cited and considered.] Where an accomplice admits his own guilt, and testifies without reserve, immunity in respect to that offence is substantially promised him. And after having given his testimony for the prosecution, he cannot claim the privilege of not criminating himself on cross-examination, but will be compelled to answer fully. State v. Coudry, 5 Jones (Law), 418; Commonwealth v. Price, 10 Gray, 472; Foster v. People, 18 Mich. 266. The prisoner is not entitled of right to a charge from the court that the jury cannot convict him on the uncorroborated evidence of an accomplice. People v. Jenness, 5 Mich. 305. (1) It is now abolished. cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged.(d) II. A demurrer to the indictment. This is incident to criminal cases, as well as civil, when the fact as alleged is *allowed to be true, but the prisoner [*334] joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man be indicted for feloniously stealing a greyhound; which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it: in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held, (e) that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others, (f) who hold, that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him. (3) Which appears the more reasonable, because it is clear that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court, whether it be felony or no; and upon the fact thus shown it appears to be felony; the court will not record the confession; but admit him afterwards to plead not guilty. (g) And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and though a man by mispleading may in some cases lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used since the same advantages may be taken upon a plea of not guilty; or afterwards in arrest of judgment, when the verdict has established the fact. III. A plea in abatement is principally for a misnomer, a wrong name, or a false addition to the prisoner. As, if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an esquire. And if either fact is found by a jury, then the indictment shall be abated, as writs or [*335] declarations may be in civil actions; of which we spoke at large in the preceding book. (h) (4) But in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas; because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he who takes advantage of a flaw must at the same time show how it may be amended. Let us therefore next consider a more substantial kind of plea, viz.: IV. Special pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds: a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas, which may be pleaded in bar of an appeal; (i) but these are applicable to both appeals and indictments. 1. First, the plea of autrefoits 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 of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not (d) Ibid, 256. (f) 2 Hawk. P. C. 334. (i) 2 Hawk. P. C. ch. 23. (g) 2 Hal. P. C. 225. (2) A plea to the jurisdiction is never important where the want of jurisdiction appears on the face of the proceedings, as the defect may then be taken advantage of either by demurrer or by motion in arrest of judgment. And if the objection is one which must appear from the evidence of the prosecution, it may be taken without special plea whenever it appears. (3) This rule holds good in indictments for felonies, but not for misdemeanors. 8 East, 112.] (4) Defects of this description are now amendable. Statute 14 and 15 Vic, c. 100, s. 1. If objection was taken in any form, they would therefore be amended, and if not taken, they would be cured by verdict. guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, (7) he may plead such acquittal in bar of any subsequent accusation for the same crime. (5) Therefore an acquittal on an appeal is a good bar to an indictment on the same offence. And so also was an acquittal on an indictment a good bar to an appeal, by the common law: (k) and therefore, in favour of appeals, a general practice was introduced, not to try any person on an indictment of homicide, till after the year and day, within which appeals may be brought, were past; by which time it often happened that the witnesses died, or the whole was forgotten. To remedy which inconvenience, the statute 3 Hen. VII, c. 1, enacts, that *indictments shall be proceeded on, immediately, at the king's suit, for the death of a man, without waiting [ *336] for bringing an appeal; and that the plea of autrefoits acquit on an indictment, shall be no bar to the prosecuting of any appeal. 2. Secondly, the plea of autrefoits convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is 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 in danger of his life for one and the same crime. (1) Hereupon it has been held, that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment of 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 autrefoits acquit and autrefoits convict, or a former acquittal, and former conviction, must be upon a prosecution for the same identical act and crime. But the case is otherwise in, 3. Thirdly, the plea of autrefoits attaint, or a former attainder; which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by abjuration; and whether upon an appeal or an indictment; he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony. (m) And this (j) 3 Mod. 194. (k) 2 Hawk. P. C. 373. (2) 2 Hawk. P. C. 377. (m) Ibid. 375. (5) [But such a plea must be strictly regular both in form and substance; for, in cases of misdemeanor, if it is held bad on demurrer, final judgment may be entered up against the defendant. Rex v. Taylor, 5 D. and R. 422; 3 B. and C. 502. And if it is irregularly pleaded, and the acquittal which it sets forth appears to have been obtained by collusion, the court will strike the plea off the file. Rex v. Taylor, 5 D. and R. 521; 3 B. and C. 612. A plea of autrefoits acquit cannot be pleaded unless the facts charged in the second indictment would, if true, have sustained the first. Rex v. Vandercomb, 2 East, P. C. 519. If, in a plea of autrefoits acquit, the prisoner were to insist on two distinct records of acquittal, his plea would be bad for duplicity. But semble, that if he insisted upon the wrong, the court would, in a capital case, take care that he did not suffer by it. Rex v. Sheen, 2 C. and P. 635. And if the prisoner could have been legally convicted on the first indictment upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence was adduced at the trial of the first indictment or not. Id. A prisoner indicted for felony may plead not guilty after his special plea of autrefoits acquit has been found against him. Rex v. Welch, Car. Cr. L. 56.] And in the United States he is allowed to do so in case of misdemeanor also. Commonwealth v. Goddard, 13 Mass. 457. That an acquittal on an indictment which was sufficient to warrant a conviction will be a bar to future prosecution of the same offence, see Rex v. Emden, 9 East, 437; Heikes v. Commonwealth, 26 Penn. St. 513; People v. Cook, 10 Mich. 164. A person is not to be twice put in jeopardy on the same charge; and. he is in jeopardy when he is put upon trial before a court of competent jurisdiction, upon an indictment or information which is so far valid as to be sufficient to sustain a conviction, and a jury has been charged with his deliverance. Commonwealth v. Cook, 6 S. and R. 586; Wright v. State, 5 Ind. 292; State v. Norvell, 2 Yerg. 24; State v. Ned, 7 Port. 217; State v. Ephraim, 2 Dev. and Bat. 162; Price v. State, 19 Ohio, 423. After the jury are impaneled and sworn, any discharge of them without verdict and without the defendant's consent, except for reasons of necessity. will be equivalent to an acquittal. People v. Barrett, 2 Caines, 304; Commonwealth v. Tuck, 20 Pick. 365. And see Cooley's Const. Lim. 327; Whart. Cr. L. § 541, et seq. But the court must have had jurisdiction; State v. Odell, 4 Blackf. 156; State v. Payne, 4 Mo. 376; State v. Hodgkin, 42 N. H. 474. 505 VOL. II.-64 |