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A treatise on the criminal law of the United States online

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Gen. Court of Virginia, Nov. T. 1811 ;
8 Whealer's C. C. 550 ; Hawk. b. 2, c.
85, 8. 3 ; Burn, J., Indictment, xi. ; 1
M. & S. 188 ; 9 East, 488; 2 Leach,
712; 4 Co. Rep. 44 ; Rocco v. State,
87 Missis. 857.

i 4 Black Com. 885 ; 2 Hawk. ch.
85, sect. 1 ; see for forms of replication
and rejoinder, Wh. Free. 1155-6.

u As to identity of defendant, see
R. V. Crofts, 9 C. & F. 219 ; as to iden-
tity of offence, post, § 569. See for
462



forms of pleas, Wh. Free, as fol-
lows: —

(1150) Flea of autrefois acquit.

(1151) Autrefois acquit, another form.

(1152) Replication to same. (To be
made ore tenus.)

(1158) Flea that defendant was duly
charged, examined, and tried for the
murder of the deceased before a
court legally constituted, and upon
this trial and examination was duly
and legally acquitted of the said
murder and felony with which he
stood charged, and was adjudged by
the court not guilty thereof.

(1154) Autrefois convict, plea of, where
the original indictment, on which the
defendant was convicted, was one for
arson, and the second indictment was
for murder in burning a . house
whereby one J. H. was killed, &c

(1155) Replication to said plea.

(1156) Rejoinder to said replication.

(1157) Flea of once in jeopardy.

V 2 Hale, 241 ; State i?. Small, 81



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BOOK L] autrefois ACQUIT. [§ 570.

to prove the record ; and secondly, to prove, orally or otherwise,
the averment of identity contained in his plea, w

Where the second indictment is preferred at the same term,
the original indictment and minutes of the verdict are receivable
in evidence in support of the plea of ymtrefotB acquit^ without a
record being drawn up. a; But where the previous acquittal
was at a previous term in the same jurisdiction or in a difEerent
jurisdiction, it can only be proved by the entire record, y

§ 569. Unless the plea on its face shows that it is the same
offence of which the prisoner was before acquitted, the plea may
be demurred to, or advantage may be taken of it upon a replica-
tion of md tiel record, z

Where the only issue is the identity of the offences, a tech-
nical difference between the description of property in the first
indictment and the second, will be disregarded, when no proof
is offered as part of the prosecution to show the offence was the
same, a

JParol evidence at to identity of offence. — Hence in cases of dis-
pute, parol testimony is admissible to prove (what the records can-
not suflBciently) show that the offences were or were not identical, b

Burden of proof — The burden of proving a prior conviction
of the offence charged against a defendant being upon him, it is
not shifted hy primd facie evidence of the identity of an offence
of which he has been previously convicted with that now charged
upon him. b^

§ 670. Where four persons were tried for rape, upon an indict-
ment containing counts charging each as principal, and the
others as aiders and abettors, they were acquitted ; and it being
proposed on the following day to try three of them for another
rape upon the same person, <? they pleaded autrefois acquit to

Missouri, 197 ; Com. v. Daley, 4 Gray, State v, Andrews, 27 Mo. 267 ; Porter

209. Post, § 569. V. State, 17 Ind. 415 ; Com. v. Dillane,

to See 2 Russ. 721, n.; State v. 11 Gray, 67 ; R. v. Bird, 2 Den. C. C.

Thornton, 37 Mo. 860. 94 ; 5 Cox C. C. 20 ; supra, § 567.

X R. V. Parry, 7 C. & P. 886. b^ Com. v. Daley, 4 Gray (Mass.),

y R. V. Bowman, 6 C. & P. 101, 209 ; see 2 Hale, 241 ; State v. Small,

337. 31 Mo. 197;. State v, Thornton, 37

2 Hite V. State, 9 Yerger, 857 ; Mo. 360.

McQuoid V. People, 3 Gilmore, 76. c The second indictment bcin^;

a People V. McGowan, 17 Wendell, exactly the same as the first, with

386. the omission only of the fourth pris-

b Duncan v. Com. 6 Dana, 295; oner.

463



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§ 571.] PLEAS : [book I.

the second indictment, averring the identity of the offences, and
to this plea there was a replication that the offences were dif-
ferent. The prisoners' counsel put in the commitment and the
former indictment, and also the minutes of the former acquittal
written on the indictment.* On this evidence the jury found that
the offences were the same ; and it being referred for the opinion
of the judges whether there was any evidence to justify and
support the verdict, and if not, whether such verdict was final,
and operated as a bar to any further proceedings by the crown
upon the second indictment, the court held, that the verdict of
the jury was final, and the prisoners were discharged, d

Form of conclusion of replication to plea. — Wherever the
offences charged in the two indictments are capable of being
legally identified as the same offence by averments, it is a ques-
tion of fact for a jury to determine whether the averments be
supported, and the offences be the same. In such cases the
replication ought to conclude to the country. But when the
plea of autrefois acquit upon its face shows that the offences are
legally distinct, and incapable of identification by averments, as
they must be in all material points, the replication of nul tiel
record may conclude with a verification. In the latter case,
the court, without the intervention of a jury, may decide the
issue. «

Where replication i% fraud. — Where the former conviction
was effected by fraud, the plea of autrefois convict^ in such case,
being replied to specially, the replication, which sets forth such
fraudulent prosecution and conviction being well drawn, is a suf-
ficient answer to the defendant's plea, and should be adjudged
good on demurrer./

§ 671. Cases of practice under plea and replication. — To an
indictment for larceny in a dwelling-house, the defendant pleaded
a former conviction of pilfering, on a complaint before a police
court, averring that the articles and the stealing mentioned in

d R. V. Parry, . 7 Car. & P. 836. evidence ; therefore, the court may

Ante, § 562 a. charge the jury that the pleas are not

e Hite v. State, 9 Yerger, 357. It sustained by the proof when that is

is the duty of the court to declare the the fact. Martlia v. State, 26 Ala.

legal effect of a record which is of- 72; see Foster t\ State, 39 Ala. 22 J;

"ered to sustaun the plea of autrefois State v, fhyces, 86 Vt. 667.

actfuii or discontinuance, and the rec- / Com. r. Jackson, 2 Virg. C. 601 ;

ord itself cannot be gainsaid by parol State v. Brown, 16 Conn. 54.
464



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BOOK I.] AUTREFOIS ACQUIT. [§ 572.

the indictment were the same mentioned in said complaint, and
that the police court had jurisdiction of the offence. The repli-
cation averred that the stealing charged in the said complaint
was a larceny in the dwelling-house, which was a high and
a^ravated crime, and that the police court had not jurisdic-
tion thereof. The rejoinder traversed the several averments in
the replication. It was held, on special demurrer, that the
rejoinder was good, being neither a departure, nor double, and
that though the plea was defective in form, for not directly
traversing the charge of larceny in a dwelling-house, yet that
the defect was cured by the pleading over.^ The proper plea
would have been former conviction of the larceny, and not guilty
of the residue of the charge. A A party being indicted for a
misdemeanor, pleaded a former acquittal, but his counsel could
not find the record, nor could the solicitor general find the former
indictment. The court ordered the trial to proceed, and the
prisoner was found guilty. Afterwards the former indictment
and record of acquittal were found, the two indictments being
identical, with the exception that in the former the oflEence was
charged on the Ist of June instead of May, and the words *' a
wagoner" were added to the description of a negro. It was held
that there could be no doubt of the identity of the oflfence, and a
new trial must be granted notwithstanding the laches of counsel, i
Where, to an indictment, the defendant pleaded autrefois convict^
and not guilty, which pleas were both submitted to the jury at
the same time, and the jury found a verdict of guilty, but ren-
dered no verdict on the first plea, a judgment entered on the
verdict was held erroneous.y

In Massachusetts, by Gen. Stat. 1864, c. 250, § 4, it is sufficient
in autrefois acquit or convict to set forth simply a prior lawful
acquittal or conviction.

§ 572. (y.) Judgment on a plea of autrefois acquit — When
the plea of autrefois acquit or convict is determined against the
defendant, in this country in most cases he is allowed to plead
over, and to have his trial for the offence itself. I In England,

g Com. V. Curtis, 11 Pick. 184. Fenn. State R. 14. See this point

h Ibid. fulljr discussed, ante, § 580 a.

t Dacy 17. State, 17 Geo. 489. / Barge r. Com. 8 Penrose & Watts,

j Soliday v. Com. (4 Casey) 28 262 ; Com. v, Goddard, 18 Mass. 455 ;

Foster v. Com. 8 Watts & S. 77 ; Him
VOL. I. —80 * 465



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§ 672.] PLEAS : [book I.

however, though this is allowed in felonies, it is not in misde-
meanors. 971 Of the injustice of this distinction a pregnant illus-
tration is found in a case which, in 1850, attracted great atten-
tion in England, n On the plea of autrefois acquit to an assault,
issue was taken by the crown, and after verdict, judgment en-
tered against the prisoner, who was thereupon sentenced to hard
labor for two years. In pronouncing sentence, Martin, B., did
not hesitate to express his compunctions at sentencing a man for
an offence for which he was never tried. " I cannot but feel,"
he said, addressing the prisoner, ^^ that you stand in the condition
of persons whose case has not been heard. If you wish me to
postpone the sentence, I will do so. I feel it to be a great hard-
ship that the prisoners should be punished without a trial, and
with no opportunity given to them of answering or explaining the
charge laid against them."(> It was the hardship of a judge thus
sentencing a man of whose guilt he knew nothing, that led Judge
Grier and Judge Kane, in the U. S. circuit court in Philadelphia,
to decline sentencing a man who had been convicted capitally be-
fore Judge Randall, the district judge, who since the conviction
and the application for sentence had died.^ This difficulty, how-
ever, has not deterred the supreme court of New York from hold-
ing that where, in an inferior tribunal, judgment against the
people had been entered on a demurrer, on reversing the judg-
ment, they would not permit the defendant to withdraw his de-
murrer, but would sentence him themselves, q

Where the state demurs to the plea of autrefois convict to an in-
dictment for a capital felony, and the demurrer is overruled, the de-
fendant is not entitled to be discharged, and the state may rejoin, r

In cases, where the defendant pleads over to the felony at the
same time with the issue in the plea of autrefois acquit^ the jury
are charged again to inquire of the second issue, and the trial
proceeds as if no plea in bar had been pleaded, s

V. State, 1 Ohio St. R. 16. See ante, p U. S. v. Harding, 6 P. L. J. 14.

§ 528-9, 530 a. q People v. Taylor, S Denio, 91.

m R. V. Gibson, 8 East, 107 ; R. v. See State v. Green, 16 Iowa, 239 ; and

Taylor, 3 B. & C. 502 ; S. C. 6 Dow. see ante, § 628.

& R. 422. See fully, ante, § 530 a. r State v. Nelson, 7 Ala. 610 ; ante,

n R.V. Bird, 15 Jur. 193; 2 Eng. §528.

L. & E. R. 448 f 2 Den. C. C. 94 ; 5 a R. v. Vandercomb, 2 Leach, 708 ;

Cox C. C. 20 ; ante, § 528. R. v. Cogan, 1 Leach, 448 ; R. v.

Ibid. 531. Sheen, 2 C. & P. 635 ; ante, § 530 a.
466



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BOOK I.] AUTREFOIS ACQUIT. [§ 673.

A novel assignment is not admissible in a criminal case, and tlie
proper and only mode of replying to a plea t)f -a former conviction
is to traverse the alleged identity, t

6. Once in Jeopardy, u

§ 573. (a.) Constitutional provision. — By the Constitution of
the United States it is provided : " Nor shall any person be sub-
ject for the same offence to be twice put in jeopardy of life and
limb ; " t; and the same restriction, taken from the federal con-
stitution, exists in the constitutions of most of the states. Whether
this amounts to anything more than the common law doctrine in
volved in the plea of autrefois acquit^ has beeh much doubted.
What that doctrine is has been already stated. It is founded, to
adopt the summary of Mr. Chitty, upon the principle that no man
shall be placed in peril of legal penalties more than once upon the
same accusation, w It has, therefore, been generally agreed,, that
where a man has once been pronounced ** not guilty" on a valid
indictment or appeal, he cannot afterwards be indicted again upon
a charge of having committed the same supposed offence, a? At
common law, as has been seen, it means nothing more than that
when there has been a final verdict, either of acquittal or convic-
tion, on an adequate indictment, the defendant cannot a second
time be placed in jeopardy for the particular offence ; and at the
first gl^ce the constitutional provision appears nothing more than
a solemn asseveration of the common law maxim, y In the lead-
ing cases oj^ Richard and William Vaux, reported in 4 Coke, 44,
it was held, " that the reason of autrefois acquit was because the
maxim of the common law is, that the life of a man shall not be
twice put in jeopardy for one and th^same offence ; and that is
the reason and cause why autrefois acquitted or convicted of the
same offence is a good plea ; yet it is intended of a lawful acquit-
tal or conviction, for if the conviction or acquittal is not lawful,
his life was never in jeopardy ; and because the indictment in this
case was insufficient, for this reason, he was not legitimo modo ac-

i Dancan v. Com. 6 Dana, 295. 2 Hawk. c. 85, 8. I. Post, § 591, 3168,

ti See, for plea of " Once in Jeop- 8305.

ardy," Wharton's Free. 1157. See, x 2 Hawk. c. 35, s. 1; 4 Bla. Com.

alfio, this subject further examined, 835. For English rule, see post, §591.

post, § 3168, 8305. y Ned v. State, 7 Porter, 188; U.

V Const. U. S. Amend, art. 5. S. v, Gibert, 2 Sumner, 41.

ID 4 Co. Rep. 40; 4 Bla. Com. 385 ;

467



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§ 676.] PLEAS : [book i.

quietatuB^^^ &c, " Thus we eee," says Mr. Justice Story, in oom-
menting on this case, ^^ that the maxim is imbedded in the very
elements of the common hbw ; and has been uniformly construed
to present an insurmountable bar to a second prosecution, where
there has once been a verdict of acquittal or conviction r^ularly
had upon a sufficient indictment. 2;

§ 574. (6.) Constructian given by the several courts. — In this
country, the constitutional provision has, in some instances, been
construed to mean more than the common law maxim, and in
several of the states it has been held that where a jury in a cap-
ital case has been discharged without consent before verdict, after
having been sworn and charged with the offence, 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 offence, a The cases may be placed
in two general classes: First. Where any separation of the
jury, except in case of such violent necessity as may be considered
the act of God, is held a bar to all subsequent proceedings. Sec-
ondly. Where it is held that the discharge of the jury is a
matter of sound discretion for the court, and that when, in the
exercise of a sound discretion, it takes place, it presents no im-
pediment to a second trial, b

§ 675. The first view has been taken by the courts of Penn-
sylvania, Virginia, North Carolina, California, Tennessee and,
to a certain extent, of Alabama.

Pennsylvania. — In 1822, the question was brought before the
supreme court of Pennsylvania (a state whose constitution con-
tains a provision precisely the same as that in the Constitution
of the United States), in ^ case where the defendant pleaded
specially, that the jury had been discharged on a former trial be-
cause they were unable to agree. The court held, that the dis-
charge of the jury, because they could not agree, was unlawful,
and was not a case of necessity within the meaning of the rule
on the subject. Chief Justice Tilghman said, where a party ^' is

z U. S. r. Gibert, 2 Sumner, 42. 1 Hajrw. 241; Spier's case, iDeTereuz,

See, for a learned article on this head, 491 ; Ned v. State, 7 Porter, 187.

4 Western Law Journal, 97. b For a discussion of the general

a William's case, ,2 Grat 567 ; question how far a jury may be al-

Com. V. Cook, 6 S. & R. 577 ; Com. v. lowed to separate, see post, § 3111,

Clue, SBawle, 498; State v. Garrigues, &c.
468



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BOOK I.] ONCE IN JEOPABDY. [§ 675.

tried and acquitted on a bad indictment, he may be tried again,
because his life was not in jeopardy. The court could not have
given judgment against him, if he had been convicted. But
where the indictment is good, and the jury are charged with the
prisoner, his Hfe is undoubtedly in jeopardy during their delib-
eration. I grant that in case of necessity they (the jury) may be
discharged ; but if there be an3rthing short of absolute necessity,
how can the court, without violating the constitution, take from
the prisoner his right to have the jury kept together until they
have agreed, so that he may not be put in jeopardy a second
time ? " Duncan, J., in the ca^e, in conmienting on the position
taken in People v. Goodwin, hereafter to be cited, said : ^^ I feel
a strong conviction that the construction here [there] given to
this provision of the Constitution of the United States, engrafted
into the constitutions of Delaware, Kentucky, and Tennessee, and
made an article in the bill of rights of this state, is not the true
one ; and that the provision, that no person can be put twice in
jeopardy of Hfe and limb, means something more than that he
shall not be twice tried for the same offence. It is borrowed
from the common law, and a solemn construction it had received in
the courts of common law ought to be given it. This is not the
signification of the words in their common use, nor in their gram-
matical or legal sense. * Twice put in jeopardy,' and ^ twice put
on trial,' convey to the plainest understanding different ideas.
There is a wide difference between a verdict given and a jeop-
ardy of a verdict. Hazard, peril, danger of a verdict, cannot
mean a verdict given. Whenever the jury are charged with a
prisoner, where the offence is punishable by death, and the indict-
ment is not defective, he is in jeopardy of life." It was accord-
ingly held, that in that case, the jury having been discharged
without giving any verdict, without absolute necessity, the
prisoner was not liable to be tried again, e

In 1831, in a case where the defendant interposed a similar
plea, the doctrine was pushed by the same court still further.
It was argued by Gibson, C. J., with his usual vigor, that " no
discretionary power whatever exists with the court in such a
case to discharge." " Why it should be thought," he said,
^^ that the citizen has no other assurance than the arbitrary dis-

c Com. V. Cook, 6 Serg. & Rawle, Harris, 12. Post, § 590, 8168, 8288,
577; but see Com. v, McFadden, 11 S808.

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§ 675.] PLEAS : [book I.

cretion of the magistrate, for the enforcement of the constitu-
tional principle which protects him from being twice pnt in
jeopardy of life or member for the same offence, I am at a loss
to imagine. If discretion is to be called in, there can be no
remedy for the most palpable abuse of it, bat an interposition of
the power to pardon, which is obnoxious to the very same objec-
tion. Surely every right secured by the constitution is guarded
by sanctions more imperative. But in those states where the
principle has no higher sanction than what is derived from the
common Jaw, it is nevertheless the birthright of the citizen, and
consequently demandable as such* But a right which depends
on the will of the magistrate, is essentially no right at all ; and
for this reason the common law abhors the exercise of a dis-
cretion in matters that may be subjected to fixed and definite
rules. I take it on grounds of reason as well as authority, then,
that a prisoner of whom a jury have been discharged before
verdict given, may, by pleading the circumstances in bar of an-
other trial, appeal from the order of the court before which he
stood, to the higJiest tribunal in the land. Nor do I understand
how he shall be said not to have been in jeopardy before the
jury have returned a verdict of acquittal. In the legal, as well
as the popular sense, he is in jeopardy the instant he is called
to stand on his defence ; for from that instant, every movement
of the commonwealth is an attack on his life ; and it is to serve
him in the hour of his utmost need that the law humanely adds
to the joinder of the issue, a prayer for safe deliverance. The
argument must, therefore, be, that he is not put out of jeopardy
unless by a verdict of acquittal ; and that to try him a second
time, having remained in jeopardy all along, is not to put him in
jeopardy twice. In this aspect it must be obvious that the argu-
ment is an assumption of the whole ground in dispute. If the
prisoner has been illegally deprived of the means of deliverance
from jeopardy, every dictate of justice requires that he be placed
on ground as favorable as he could possibly have attained by
the most fortunate determination of the chances." d

In a later case (April, 1851), however, where the jury were
allowed to separate by consent, after being sworn, but before
the case was opened, the court, while reversing the judgment,
remanded the prisoner for another trial, e " The law is un-

d Com. V. Clue, S Rawle, 498. e PeifTer v. Com. 3 Harris, 468.

470



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BOOK l] once in jeopardy. [§ 577.

doubtedly settled," said Gibson, C. J., " that a prisoner's consent
to the discharge of a previous jury is an answer to a plea of a
former acquittal."

It has since been held that the plea of " once in jeopardy for
the same offence," will not avail where the jury were discharged
on account of disagreement, in a charge of burglaiy. e^

§ 576. Virginia. — In Virginia, mere inability to agree is not
such a necessity as will justify the court in discharging a jury,
and in such case the defendant cannot be again put in jeopardy ;/
though where, after nine days' confinement, one of the jurors
suffered materially in health, it was held the jury were properly
discharged, and the second trial was regular, g

§ 577. North Carolina. — The same question came before the
supreme court of North Carolina, in a very early case, h and
again at a much later period, i where it was alleged that the
jury in a capital case had been discharged without legal neces-
sity, having given no verdict. The court held that the prisoner
could not be again tried. On the last occasion the cases in the
supreme courts of Massachusetts, New York, and Pennsylvania
wer6 cited ; and the court adopted that of the supreme court
of Pennsylvania, and affirmed the exposition of the clause given
by that court, that no man shall be twice put in jeopardy, &c.,
for the same offence. Hall, J., said : " When the jury were thus
charged with the prisoner, he certainly stood upon his trial ; his
life was jeopardized." And he afterwards proceeded to the ex-
ceptions of a discharge fi*om necessity, and when the indictment
is bad. Taylor, C. J., delivered a more elaborate opinion, argu-
ing that " twice put in jeopardy," and " twice put on trial,"
convey to the mind several and distinct meanings ; " for we can
readily understand how a person has been in jeopardy, upon
whose case the jury have not passed. The danger and peril of
a verdict do not relate to a verdict given. When the jury are
empanelled upon the trial of a person for a capital offence, and
the indictment is not defective, his life is in peril or jeopardy,
and continues so throughout the trial." It was ruled that the
provision of the constitution, " that no person shall be subject

e^ McCreary v. Com. 29 Penn. g Com. v. Fells, 9 Leigh, 618.'
State R. 323. h State r. Garrigues, 1 Hayw. 241.

/ Williams v. Com. 2 Grattan, i Spier's case, 1 Uever. 491.
568.

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§ 578.] PLEAS •-. [book I.



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