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by the judge before verdict, he is, in either case, hable
to be indicted again. The doctrine, moreover, does
not apply where the first indictment has been quashed
by reason of some defect, since, in all these cases,
the defendant has never been legally in jeopardy.

In general, the charge on which the defendant
was before acquitted must be either identical with.



330 BK. IV. — CRIMINAL PROCEDURE.

or one in respect of which he might have been con-
victed of, the oSence subsequently charged. Thus,
an acquittal on an indictment for murder is a bar
to a subsequent indictment for manslaughter in
respect of the same act ; for, on the indictment for
murder, the jury might have found a verdict of man-
slaughter. And so, in all the cases in which a jury
is empowered to convict of some offence other than
that charged in the indictment, e.g., of indecent assault
on an indictment for rape. So also, an acquittal of
any offence is a bar to a subsequent indictment for
attempting to commit the same offence. An acquittal
upon an indictment for burglary and larceny may
be pleaded on a subsequent mdictment for larceny
only ; but an acquittal on an indictment for burglary
with intent to commit larceny is no bar to a sub-
sequent indictment for larceny, for the accused person
was never in peril of conviction for this offence. The
test in every such case is, whether the accused might
on the previous indictment have been convicted of the
offence with which he is later charged.

But the doctrine goes even further than this ; for,
where an acquittal on the first charge necessarily
involves an acquittal on the second charge, even
though the accused could not have been found guilty
of the second charge on the former indictment, this
will operate as a bar to the subsequent proceedings.
Thus, an acquittal on a charge of manslaughter is
a bar to a subsequent charge of murder in respect
of the same act ; and this even though further
incriminating evidence may have been brought to
light since the former trial. And, generally, a person
who has been acquitted of any offence, cannot sub-
sequently be charged with an aggravated form of
the same offence on the same facts. This does not,
however, apply in cases where the subsequent charge
is murder or manslaughter, and the previous charge



I



CHAP. XXIV. — PLEA AND ISSUE. 331

was one preferred before the death, of assault,
attempted murder, or the like; for, in such case, the
later charge would be based on a new fact, viz., the
death of the person assaulted.

If a man be indicted as accessory, and acquitted,
that acquittal will be no bar to an indictment
as principal In the converse case, an acquittal as
principal is no bar to a subsequent indictment as
an accessory after the fact ; but, since the Accessories
and Abettors Act, 1861, this rule does not apply to
a subsequent indictment as an accessory before the
fact, which appears to be barred by a previous acquittal
as a principal.

The form of a plea of autrefois acquit is as follows : —

The King v. A. B.

Central Criminal Court.

A. B. says that the King ought not to prosecute
the indictment against him, because he has been
lawfully acquitted of the offence charged therein.

If a defendant makes this plea of autrefois acquit,
a jury is sworn to try the issue raised thereby. The
defendant must be prepared with evidence in support
of his plea, the onus of proving which Hes upon him.
If the jury find in favour of the defendant, he is
entitled to his discharge. If they find against him,
he is, in a case of felony, allowed to ' plead over,'
that is, withdraw his special plea, and plead not
guilty to the indictment. In cases of misdemeanor,
the judgment is final, though in its discretion the
court may grant the defendant the same privilege
as he has in the case of felony.

(ii) The plea of a former conviction {autrefois
convict) for the same offence, is also a good plea in
bar to an indictment. And this depends upon the
same principles as apply in the case of the plea of



332 BK. IV.— CRIMINAL PROCEDURE.

autrefois acquit, viz. that no man ought to be twice
brought into danger for one and the same offence ;
and it is governed, in general, by the same rules.
This principle is also specifically recognised by
section 33 of the Interpretation Act, 1889, which
provides that, where an act or omission constitutes
an offence under two or more Acts, or both under an
Act and at the Common Law, the offender shall not
be liable to be punished twice for the same offence.

The plea is in the same form as in the case of a
plea of autrefois acquit, with the substitution of the
word ' convicted ' for the word ' acquitted.'

In cases where the former conviction was for a
capital offence, and had been followed by sentence
of death, it was formerly usual to j)i^it in a plea of
a former attainder {autrefois attaint), instead of a
plea of autrefois convict. This plea was at one time
of wider application than a plea of autrefois convict
simply ; for it might have been pleaded where a
man, after being attainted of one felony, was after-
wards indicted for any other offence. But attainder
for treason and felony (except in the case of out-
lawry) was abolished by the Forfeiture Act, 1870 ;
since which date, the plea of autrefois attaint has been
obsolete.

(iii) 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. In capital offences, there was formerly
one advantage that used to attend pleading a pardon
in Ijar, or in arrest of judgment, before sentence was
passed, wliich 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 cf)iTuption of blood,
which used to follow in certain cases on conviction.



CHAP. XXIV. — PLEA AND ISSUE. 333

and which could not afterwards be purged except by
Act of Parliament. But there is now, as has been
formerly said, no such thing as corruption of blood
on conviction ; and as a pardon is pleadable (accord-
ing to the period at which it is obtained) not only
in bar of the indictment, but, after verdict, in arrest
of judgment, or, after judgment, in bar of execution,
the further consideration of pardons will be reserved
to a subsequent chapter (p. 459). A pardon, granted
before plea, other than a pardon by statute, must, how-
ever, be specially pleaded ; otherwise the defendant
will be taken to have waived his right to this plea.

The general issue, that is to say, the plea of not
guilty, remains therefore to be considered. The
effect of this is, that, on the one hand, it puts the
prosecutor to the proof of every material fact he has
alleged, and, on the other, it entitles the defendant to
avail himself of every ground of defence, as amply
as if he had pleaded it in a specific form : so that
this is, in every respect, the most advantageous plea
for the prisoner. This is the proper plea, wherever
the prisoner means either to deny or to justify the
charge in the indictment. Except in cases of libel,
there is no special plea of justification. Thus, on
an indictment for murder, a man does not plead
that the killing was in his own defence, against a
robber ; but he must plead the general issue, not
guilty, and give this special matter in evidence. For,
besides that such pleas do in effect amount to the
general issue, since, if true, the prisoner is most clearly
not guilty, the charge of a felonious intent is the
point and very gist of the indictment, and must be
answered directly by the general negative, not guilty.
But, in the case of a prosecution for libel, the accused
may, in addition to the plea of not guilty, plead that
the alleged libel was true, and that it was for the



334 BK. IV. — CRIMINAL PROCEDURE.

benefit of the public tliat it should be published.
For this purpose a written plea of justification is
filed, in accordance with the provisions of section 6
of the Libel Act, 1843.

By the plea of 7iot guilty, the prisoner puts himself
upon his trial by jury, which brings the parties to
issue ; and then they proceed, as soon as conveniently
may be, to the trial, the manner of which will be
considered at large in the next chapter.

At this stage of the proceedings, as before plea,
either party may apply for a postponement of the
trial. The court may require the application to be
supported by affidavit, and the grounds fully stated.
The usual grounds upon which such an application
will be granted have already been stated (p. 320).
If the application is granted, the prisoner may either
be detained in custody or released on bail.

We may also mention here two courses which may,
in proper cases, be taken by the Crown, where it is
not desired to proceed further with the prosecution
of the accused person.

The first of these is the entry of a nolle prosequi,
which can only be done by leave of the Attorney-
General. This has the effect of staying all proceed-
ings upon the indictment in respect of the prisoner
to whom it refers. The usual occasions for granting
a nolle prosequi are where, in cases of misdemeanor,
a civil action is pending relating to the same matter,
or where the indictment is not sustainable, or where
for any reason it appears to be in the interests of
justice that the case should not be further jiroceedcd
with. Where several persons are jointly indicted,
u nolle prosequi may be entered against one or more
of them, and the prosecution of the remainder be
continued.

The other course is that of offering no evidence
against the accused person, which may be adopted



CHAP. XXIV.— PLEA AND ISSUE. 335

by the prosecution in suitable cases. This is, how-
ever, not done until after a jury has been sworn for
the trial, whereupon the prisoner will be acquitted
by them without the hearing of any evidence. This
course, also, may be pursued in regard to one or more
of several defendants, or in respect to some only of
the charges preferred against them.



NOTE ON AUTHORITIES.

[Pleas are dealt with fully in Russell, " Crimes and Misdemeanors "
[Ith edition), pp. 1979-1996, and Archhold, " Criminal Pleading "
{25th edition), pp. 146-162.

On the pleas of " autrefois acquit " and " autrefois convict," the
student may refer to the folloioing cases : —

R. V. Vandercomb (1796) 2 Leach, 708 ; 2 East, P. C. .519.

R. V. Dyson [1908] 2 K. B. 454 ; 77 L. J. K. B. 813.

R. V. Miles (1909) 3 Cr. App. R. 13.

R. V. Barron [1914] 2 K. B. 570 ; 83 L. J. K. B. 786 ; 10 Cr.

App. i?. 81.
R. V. Tonks [1916] 1 K. B. 443 ; 85 L. J. K. B. 396 ; 114 L. T.

81 ; 80 J. P. 165 ; 32 T. L. R. 137 ; 11 Cr. App. R. 284.]



( 336 )



CHAPTER XXV.

7. TRIAL.



Trial by jury has, for so many centuries, been
looked upon by Englishmen as the one proper method
of deciding serious criminal charges, that it is by
many people assumed to have been the oldest method
practised in this country. Moreover, its introduction
has been carried back into remote antiquity, and
attributed to various Kings or heroes, of whom King
Alfred is, perhaps, the least mythical. It is, however,
now known, that trial of criminal charges by a jury
did not become universal, or even common, in England,
until the late thirteenth century; and the cause of
its introduction is also well known, even though the
precise date of it is still doubtful. Probably, the
popular belief is due largely to the fact, that trial
by jury in criminal cases was not introduced by any
statute, or even royal ordinance, nor yet by any
definite resolution of the courts, but gradually made
its way as the best solution of a practical difficulty.
It seems to have been alluded to for the first time in
an Act of Parliament in 1351 (25 Edw. III., st. V., c. 3),
which speaks of a ' jury of deliverance ' ; and the
framers of this statute evidently regarded it as an
already established institution.

Criminal law, or, at any rate, criminal procedure,
in the present sense of the term, seems to have begun
with the institution of the grand jury, previously
alluded to (pp. 284-287). For though, long before



CHAP. XXV. — TRIAL. 337

the introduction of that institution by the Assize of
Clarendon in 1166, the Crown had established the
right to regard certain specially serious offences (such
as murder, robbery, theft, harbouring of fugitives,
&c.) as breaches of the 'King's Peace,' not merely as
wrongs left to be remedied by the vengeance of the
injured party or his relatives, yet it was only by
the reforms of 1166, that any regular procedure for
enforcing the Crown's rights in this respect was set
up. Previously to that date, it had probably been
the sheriff's business, after raising the ' hue and cry,'
to seize and execute the persons guilty of these
serious offences, and appropriate their chattels to the
King's use.

Moreover, even the establishment of the grand
jury did not introduce a new procedure for the trial
of such offenders ; for, as we have seen (pp. 283-287),
the function of the grand jury was, and still is, merely
that of accusation (' the jurors for our Lord the King
present,'' &c.). But, if we look a little further down
the Assize of Clarendon, we shall find some traces
of the views held by the royal advisers as to the
course to be adopted after the grand jury had done
its duty by indicting (or accusing) the alleged
delinquent. In clause 2, it is provided that persons
so accused shall go to the 'judgment of water' {i.e.,
the ordeal), and shall not, unless claimed by their
lords who are willing to give pledges for them (clause 3),
be entitled to their 'law' — i.e., to clear themselves
by the oaths of their kindred. Of course it was
unthinkable that they should be allowed to offer
battle to their accusers. These three processes —
ordeal, oath, battle — were the modes of trial then in
use when the accuser was merely a private person.

Ordeal was the most antient of these modes of
trial, and was of two sorts, either ^ire-ordeal, or icaier-
ordeal ; the former being confined to persons of

S.C. — VOL. IV. z



338 BK. IV. — CRIMINAL PROCEDURE.

higher rank, the latter to the common people. Both
might be performed by deputy ; but the principal
was to answer for the success or failure of tlie trial.
Fire-ordeal was performed either by taking up in
the hand a piece of red-hot iron, or else by walking,
barefoot and blindfold, over red-hot ploughshares,
laid lengthwise, at unequal distances. If the accused
escaped being hurt, he was adjudged innocent ; but
if it happened otherwise, he was adjudged guilty.
On the other hand, water-ordeal was performed,
either by plunging the bare arm up to the elbow in
boiling water, when, if the accused was unhurt thereby,
he was adjudged innocent ; or by casting the person
suspected into a river or pond of cold water, where
if he floated without any act of swimming it was
deemed an evidence of his guilt, but if he sank, he
was acquitted.

So late as King John's time, we find grants to the
bishops and clergy, to use the judicium ferri, aqucB,
et ignis ; and it was natural that these methods of
trial, being in the nature of appeals to the Deity
to testify to the innocence of the accused, should
be under the charge of the Church. But, the ordeal
having tended, through bribery and trickery, to fall
into disrepute, it was decreed by the Lateran Council
of 1216, that the clergy should no longer take part in
such trials, in consequence of which they ceased soon
after to be practised.

Another species of purgation was the corsned, or
accursed morsel ; being a piece of dry bread, which
was consecrated with a form of exorcism. The
accused called on the Almighty to cause the bread
to stick in his throat if he were guilty, and then pro-
ceeded slowly to eat the morsel. If he swallowed
it freely he was judged innocent ; but if he choked
at all he was held to be guilty. The difficulty which
a superstitious man, conscious of guilt, might find



CHAP. XXV. — TRIAL. 830

in swallowing the morsel, may perhaps account for
the alleged efficacy of this mode of trial, which, in one
form or another, has been, and is, used by primitive
peoples in many countries.

The trial by battle, duel, or single combat, was
another species of presumptuous appeal to Providence,
under an expectation that Heaven would unquestion-
ably give the victory to the innocent or injured party.
As has been said above, it seems to have been
considered out of the question as the method of
deciding a charge solemnly preferred by the grand
jury in the name of the King, but it continued to
be used in the alternative a'pyeal of felony, or private
prosecution, which was by no means abolished by
the Assize of Clarendon, but continued to be employed
for centuries longer, especially in charges of theft and
robbery, because the private prosecutor, if success-
ful, recovered his goods, while, if the offender were
convicted at the King's suit, his chattels went (as
we have seen) to the Crown. Ultimately, however,
a politic statute of the year 1529 (21 Henry VIII., c. 11),
by allowing a prosecutor who actively assisted the
King's officials and grand jury in bringing a thief to
conviction, to recover his goods by a writ of restitu-
tion, in effect put an end to such appeals, though
they were not expressly abolished until after a
dramatic revival of them in the case of R. v. Thornton
(1818) 1 B. & Aid. 405, when a statute (59 Geo. III.,
c. 46, s. 1) was passed declaring them illegal.

The trial by clearing oath, which, as we have already
pointed out, was expressly forbidden by the Assize
of Clarendon in the case of persons accused by the
grand jury, was a very ancient mode of trial, probably
one of the earliest efforts made by the more orderly
elements in the community to put an end to the
disorders caused by the practice of revenge for injuries
suffered. In a primitive state of society, such



340 BK. IV. — CRIMINAL PROCEDURE.

practices are universal ; but even the ordered and
regulated form of them known as the blood feud is
ultimately seen to be fatal to progress and prosperity.
Apparently, if we may judge by the contents of the
old English Laws, it was still the normal method of
procedure in this country in the eighth and ninth
centuries a.d. ; but the same Laws show determined
efforts on the part of the wiser elements of society
to eradicate it. One of the most successful of these
efforts was to substitute a wergild, or payment, in
cattle or money, for the right of revenge. The old
English Laws contain most elaborate regulations on
this subject.

But, of course, it might well be, that the accused
person would deny the offence ; and then it was that
the efforts of the peace-makers were directed to devise
a means of trying the question. Apparently if,
but only if, the accused were ' of good fame,' he was
allowed to bring a certain number of his kindred
to swear solemnly (' with united hand and mouth —
i.e., in solemn oath sworn in unison) that the accused
was guiltless ; and, if the ceremonj' were duly per-
formed, the accused went free. There was nothing
of what we should call ' evidence ' in the matter,
except, as we should say, ' testimony to character ' ;
but, in those simple days, this was deemed sufficient.
The trial by clearing oath survived , as the ' wager
of law,' in civil proceedings until the sixteenth century
at least ; but it was then felt to be a farce, and was
superseded by ncM- forms of procedure, involving
trial by jury. As we have already seen, it was for-
bidden by the Assize of Clarendon to persons accused
by the grand jury, unless their lords would go bail
for them ; and, in appeals of felony, it could only
be employed if there was no presumption of guilt
{e.g., by discovery of stolen goods in his possession,
ortbo murderous weapon) against the accused.



CHAP. XXV. — TRIAL. 3-^1

Thus, towards the end of the thirteenth century,
the Kmg's Courts were faced by a practical problem,
The Assize of Clarendon had deprived persons, accused
by the grand jury, of their trial by clearing oath.
The Church had abolished ordeals. Trial by battle
could not be thought of for the purpose. How was
the accused to be tried ? Apparently, in their per-
plexity, the judges adopted the practice of inviting
the accused to ' put himself upon the country,' i.e.,
to submit his fate to a second or ' petty ' jury, con-
sisting of only twelve persons from the neighbour-
hood. These persons were probably collected at
hap-hazard from the by-standers in the court ; at
any rate, it was long before any regular method of
selecting and summoning them was adopted. It
was an old prerogative of the Crown (exercised as
far back as Domesday Book) to summon a body of
residents in the locality to give a true statement
{verdict) on oath (juramentum) as to the facts of any
matter in which the Crown was interested. No
other authority could compel them to serve. Thus
the question addressed to every accused : ' Prisoner,
how wilt thou be tried ? ' and the prisoner's answer :
' By God (ordeal) and my country (jury).'

But the remarkable rule which prevailed until
the middle of the eighteenth century, viz., that a
prisoner could not be compelled to submit to trial by
a jury, points to the informal origin of the practice.
If a prisoner deliberately refused to plead, he could
not be tried ; he could only be subjected to the 2^eine
forte et dure, i.e., imprisoned in circumstances of the
utmost barbarity, or dragged round the judge's circuit
in a cart, till he came to a better frame of mind (pp.
322-323), Many stout criminals, to save their famihes
from the effects of a forfeiture of their property on
conviction, held out to the end ; and it was not until
1772 that a statute (12 Geo. III., c. 20) allowed the



342 BK. IV. — CRIMINAL PROCEDURE.

judge to enter a plea of ' Not Guilty ' on the prisoner's
behalf, and the trial to proceed before a jury.

Trial by jury, or the country, has been assumed
to be that trial by his peers (pares), which is secured
to every Englishman by the Great Charter : " nullus
" liber homo capiatur, vel imprisonetur , aut exuletur,
" aut aliquo alio modo destruatur, nisi per legale judicium
" parium suorum, vel per legem terrce.^^ It need
hardly, perhaps, be pointed out, that this venerable
theory, though consecrated by the acceptance of a
long series of writers, has no foundation in historical
fact. The trial per pares of the Great Charter is
the feudal trial by the men of the fief, which was
afterwards superseded by trial by jury. It will be
noticed that the charter does not profess to secure
the judicium parium to every man, but only to every
liber homo.

Whatever be the origin of trial by jury, however,
its merits are unquestionable. The principle of the
law of England is, to presume that every man, accused
of any crime, is innocent of the charge, until he is
proved to be guilty. His innocence or guilt is only
determined after the accused person has been put
upon his trial. Before the actual trial, the law, in
its regard for the liberty of the subject, requires, as
already stated, that a grand jury, after considering
the charge and the evidence in support thereof, shall
decide whether there is sufficient ground for a trial
to take place. If they do so decide, the actual trial
takes place before another jur}' consisting of twelve
Ijersons, to be presently dealt with, who, after hearing
the evidence in support of the charge and that in
opposition to it, have to determine finally whether
on such evidence the accused is innocent or guilty.
This method not only secures to the accused a fair
and impartial trial, but relieves judges from the
intolerable anxiety of convicting on capital charges.



CHAP. XXV. — TRIAL. 343

and afterwards sentencing the offender to death. A
bulwark in case of need is also raised by this mode
of trial, between the Crown and the subject, which
the Crown may not disregard, save with the prior
finding or allowance of the jury. Amongst its other
achievements, trial by jury unquestionably saved
this country from the disgrace of adopting torture as
a regular step in ordinary criminal procedure ; though
it is to be feared that, in the Star Chamber and other
prerogative tribunals, the practice of torturing prisoners
was not unknown. For it was useless to expect the
jury to believe the confession of a man who had just
been racked or otherwise tortured ; and the rule



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