William Oldnall Russell.

A treatise on crimes and misdemeanors (Volume 1) online

. (page 143 of 154)
Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 1) → online text (page 143 of 154)
Font size
QR-code for this ebook

George 3, being the only king named in that indictment, <'our said lord
the king," in that indictment, must have referred to hira, and then the
defendant could not have been punished on that indictment for keeping
the house in the time of King George the 4th. And the demurrer was
held good.(s)

If a prisoner could have been legally convicted upon an indictment if a prison-
upon any evidence that might have been adduced, his acquittal on that <"" <^""''^
indictment may be successfully pleaded to a second indictment, and it istonvictcd
immaterial whether the proper evidence was adduced at the first tritil or ^y any cvi-
not. A plea of autrrfois acquit must only set forth the record of onCji^gg^J^
acquittal; if it were to set forth two, it would be bad, for duplicity, but indictment
it seems that the court would take care that the prisoner should not be ^^ "i".y '"c-

Till- • • 11 1 • ccssfully

prejudiced by pleading one acquittal instead of the other. To an indict- plead his

luent for the murder of a child, described in different counts as Charles ac'iuittal to

William, *\Villiam, &c., the prisoner pleaded that at a former delivery i„(iietuicnt.

of the gaol of Newgate he had been indicted, tried, and acquitted of the *833

murder of Charles William Beadle, and the plea averred that the child

was as well known by the name of Charles William Beadle as by any of

the several names and descriptions of Charles William, <S:c., as he is in

and by the present indictment described : and this averment was traversed

by the replication. The prisoner's counsel asked if they might add to

this plea, that the prisoner was acquitted on the coroner's inquisition, in

which the deceased was described as Charles William Sheen. Burrough,

J., "If the prisoner, by his plea, insists on two records, his pica would

be double, (/) but if in the course of the case it shall appear that he

ought to have pleaded his acquittal on the inquisition, I will take care

that he shall not be prejudiced." For the prisoner a register was put

in, in which the baptism of the deceased, who was about four months

old, was entered ''Charles William the son of I^ydia Beadle;" a witness

proved the identity of the child, and that his mother was an unmarried

woman, named Lydia ]5eadle, whom the prisoner had married after the

birth of the deceased, and stated that the deceased was always called

William or Billy, but that she should have known him by the name of

(,s) Kcx V. Taylor,' 3 B. & V. 502.

[I) But see .Ashford v. Thornton, 1 B. & AM. 42o, -whore plea by the defendant cont.Tinel
an averment of an acquittal both on an indictment for murder and on an indictment for rape,
as well as an allegation of an alibi, and divers other facts tcmling to prove the defendant's
innocence. Sec also 2 Hawk. P. C. c. 23, s. 128, where it is said that there seems to be no
doubt that a prisoner may plead as manj- pleas as he like unless they be ropuguaut to each
other; and sec ibid. s. lo7, and c. 34. C. S. G.

' Eng. Com. Law Reps. x. ICG.



[book IV.

Charles William Beadle ; and if any one had inquired for him by that
name she would have known who was meant. The prisoner's father
stated that the child's name was Charles William Sheen, but he had
never heard him called so. Burrough, J., (in summing up) ^'The ques-
tion on this issue is, whether the deceased was as well known by the
name of Charles William Beadle as by any of the names and descrip-
tions in the present indictment ; and I ought to say that if the prisoner
could have been convicted on the former indictment, he must be acquitted
now. And whether at the former trial the proper evidence was adduced
before the jury or not, is immaterial; for if by any possible evidence
that could have been produced, he could have been convicted on that
indictment, he is now entitled to be acquitted. The first evidence we
have is the register; and, looking at that, would not every one have
called the child Charles William Beadle ? Aud it is proved by one of
the witnesses that she should have known him by that name. It cannot
be necessary that all the world should know the child by that name,
because children of so tender an age are hardly known at all, and are
generally called by a Christian name only. If, however, you should
think that the name of the deceased was Charles William Sheen, I wish
you would inform me of it by your verdict, because it is agreed, that as
that is the name in the coroner's inquisition, the prisoner should derive
the same advantage from the course he has taken, as if he had pleaded
his acquittal on that inquisition. My brother Littledale suggests to me,
that if a legacy had been left to this child by the name of Charles
William Beadle, he would have taken it upon this evidence, and if this
evidence of the child's name had been given *at the former trial, I think
the prisoner should have been convicted. The case of Hex v. Clarl-{ii)
has been cited, but in that case there was an entire absence of evidence
as to the surname of the deceased. If you think that in the present
case the name of the deceased was either Charles William Beadle, or
Charles William Sheen, or you think that he was known at all by these
names, you ought to find a verdict for the prisoner." (i;)

If the means of death charged in two indictments be such as would
be supported by the same evidence, a plea to the one that the prisoner
was acquitted on the other is good. Therefore, to an indictment for
murder, by giving the deceased oil of vitriol, and forcing him to take it
into his mouth and throat, it is a good plea that the prisoner had been
acquitted on an indictment for giving the deceased poison, that is oil of
vitriol, and forcing him to take, drink, and swallow it down.(«')

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 the prisoner
for receiving stolen goods, he pleaded that at a previous assizes, an in-
dictment was found against two persons for stealing the said goods, and


Where the
means of
death are
proved by
the same

An acquit-
tal on an
against the
and others,
a bar to an

(m) R. & R. C. C. R. 358, ante, p. 556.

(v) Rex V. Sheen,' 2 C. & P. 634, cor. Burrough and Littledale, Js. In this case the
counsel for the crown replied ore temts, replication from the back of his brief, and the prison-
er's counsel joined issue ore tcnus ; the court awarded a venire returnable instanter, and the
sheriff having made his return forthwith, and the jury having been sworn, the counsel for
the prisoner opened his case in support of the plea, and called his witnesses ; the counsel for
the crown afterwards addressed the jury and called witnesses, and the counsel for the
prisoner replied.

(w) Rex y. Clarke,^ 1 Bred. & B. 473, ante, p. 567.

' Eng. Com. Law Reps. xii. 295. 2 lb. v. 151.


against Whitehead, the prisoner, and two others, for reeciviug the paidajiainst the
goods, and that the two principals and Whitehead were found jzuilty, hut^j"^^>_^'^*
the prisoner and the other receivers acquitted; to tliis plea there was a
demurrer, and after consideration the following judgment, which had
been prepared by Mr. J. Gaselee, was delivered at the next assizes, (a:)
"The plea of aufn/ois 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 on the subject in 2 Jfaic/c. P. C. c. 35, and Starklc on
Criminal Plead in<j, 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 Mr. Justice IJurrough, in the case of the Kiny v. tShccn, 2 C. d- P.
634. 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 l)ann had been jointly, and
in another separatel}' concerned, it does not appear that the present in-
dictment 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
AA'hitehead. The *plea alleges that the charge in the former indict- *835
ment against Whitehead and the prisoner and the other three, is the
same offence as that charged in the former indictment, and this is ad-
mitted 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 pro-
ceed against the prisoner, he might have been convicted 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, u]ion
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." (_y)

Where a defendant had been acquitted upon an indictment f"r ]icr- j„ .,gp:y„^
jury, alleged to have been committed in an aflidavit, the jurat of which
was not set out, and he was again indicted for perjury committed in ihe
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. (.r)

Where an insolvent debtor had been acquitted upon an indictment A" '"'"J"
for omitting certain goods out of his schedule, and was again indicted omitting

(x) The case was postponed in onlcr to consult the other jmlges, h\\{ they declined giving
any opinion on it, as uo judgment had been given, and the case might come before some of
them upon error.

(,V) Rex .). Dann, R. & M. C. C. R. 424.

(2) Ilex I'. Emden, East, 437. Bee this case, 2)ost, Vol. 2, tit. Perjury.


soods from for omitting those goods and some others out of his schedule ; it was
ilide*'^ '^* ^^^^ ^^^^ ^ P^^^ 0^ autrefois acquit was not, in strictness, a good de-
fence 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. (o)
In bur- Where a prisoner was indicted for a simple burglary in the house of a

glary. person, for whose murder he had been acquitted, Parke, B., said, <<The

charge in the indictment did not affect the life of the prisoner, as there
was not an allegation that the burglary was accompanied by violence,
and that 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 had been acquitted altogether, in his opinion
that acquittal would have been an answer to the allegation of violence,
if it had been inserted in the present indictment." (i)
*836 The acquittal on one indictment, in order to be a good defence to *a

The acquit- subsequent indictment, must be an acquittal of the same identical
h^vrbeen o^'^'^c^ charged in the first indictment. An acquittal, therefore, upon an
of the same indictment charging the prisoner as a principal, is no defence to an in-
identical clictmeut 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. Sbe 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 acc[uittal on the
former indictment. The prosecutor demurred, and, upon argument,
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 unanimously of opinion that the plea
of autrefois acquit was properly overruled, and that the subsequent con-
viction was good.(c)
The indict- "Wherever the indictment whereon a man is acquitted is so far erro-
raent must neous, feither for want of substance in settina; out the crime, or the

be o-ooti on .^. , ,

the^'face of authority in the court before which it was taken, as where a sessions
it, and -w^ere held on a day to which they had not been adjourned, (<^) that no
competent 8°''*^ judgment could have been given upon it against the prisoner, the
tribunal, acquittal is no bar to a subsecjuent indictment, because in judgment of
law the prisoner was never in danger of his life upon it : for the law
will presume, ^jrn?!d facie, that the judge would not have given a judg-
ment, which would have been liable to be reversed, (e) 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 prosecution, the best
reason whereof seems to be, that such error is salved by appearance. (/)

{a) Rex V. Champneys, 2 M. k Rob. 2G. 2 Lew. 52. Patteson, J., added, " If the case
goes on I shall strongly advise the jury to acquit the prisoner, unless they think that the
goods, now for the first time brought forward, were omitted out of the schedule under cir-
cumstances essentially different from the others."

{!>) Reg. V. Gould,' 9 C. & P. 364, cor. Tindal, C. J., and Parke, B.

(c) Rex V. Birchenough,2 R. & M. C. C. R. 477. 7 C. & P. 575. This case overruled 1
Hale, 626 ; 2 Hale, 224; Foster, 361 ; 2 Hawk. P. C. c. 85, s. 11 ; Kely, 25.

('/) Rex V. Bowman,3 6 C. & P. 337.

(c) 2 Hawk. P. C. c. 35, s. 8. Rex v. Turner, R. & M. C. C. 239. Yaux's case, 4 Rep. 44.

(/) 2 Hawk. P. C. ibid.
1 Eng. Com. Law Reps, xxxviii. 156. 2 j^, ^xxii. 637. » lb. xxv. 428.


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 ofii-ncc 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
diflferent 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, (y) and this opinion has been
since confirmed by very high authority. (/<) In the same case the com-
mitment 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 fur *one *337
crime, and any number of indictments might afterwards be preferred for
difierent crimes, and the learned judge was strongly of opinion that it
was not admissible. (A

(g) Rex r. Parry.i 7 C. & P. 836, 2 :\roo. C. C. K. 0, S. C Bolland, B., but he left the
case to the jury, reserving the point, ■\vluch, however, was not decided by the judges ; see
Reg. V. Martin, 2 8 Ad. & Ell. 483.

[h) Per Lord Denmau, C. J., Reg. ;•. Martin, 8 Ad. & Ell. 482.

(i) Rex r. Parry, supra, note (y). The conimitnient was, however, received subject to
the opinion of the judges. The jury found that the offences were the same, notwith-
standing the learned judge told them that he thought there was no evidence to show
that tliey were so ; and upon a case reserved, the judges held that they could not direct
the verdict to be set aside, but thej' did not decide any other point. A plea of autrefois
acquit may be pleaded ore tenus. Rex v. Bowman, ^ 6 C. & P. 337 ; Rex v. Champneys,
ante, p. 835 ; Rex ;■. 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 ho may dictate it ore tenus, and it may be taken down
by the clerk of arraigns, and put upon parchment by him. J'er Patteson, J., Rex v. Bow-
man, supra. The court will not reject an informal plea of autrefois acquit, pleaded by the
prisoner, but will assign counsel to put it into a formal shape, 2 Hale, 241, and postpone
the trial to give time for its preparation, Rex r. Chamberlain,* 6 ('. cS: P. 9S, 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. Rex v. Bowman, ' G 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, Hex v. Justices of Miildlesex,'' 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, Rex r. 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 mny 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 Rex v. Taylor," 3 B. &
C. G12, and the precedent of the plea in that case, 4 Ch. Cr. L. 507. It was once held that
the prisoner must plead "not guilty" to the felony at the same time as he pleaded autrefois
acquit. Rex v. Vandercomb, 1 Leach, 712, note (a), an<l see Rex r. Welsh, R. & M. C. C. R.
175, but in subsequent cases the plea of autrefois acquit has been pleaded alone. Rex r.
Sheen, ante, p. 834 ; Rex r. Parry, supra : Rex v. Birchenough, ante, p. 83G : Rex v. Welch,
Carr. Supp. .56, and see 2 Hawk. P. ('. c. 23, s. 128, and the prisoner may afterwards plead
"not guilty" to the felony if the jury find the plea against him, or it be held bad upon
demurrer. Rex v. Birchenough, supra. 2 Hawk. P. C. c. 23, s. 128. In misdemeanors
autrefois acquit alone can be pleaded, as if the judgment be against the defendant it is final.
Rex ('. Taylor,* 3 B. & (\ 502. The plea must set out the former indictment in order that
it may appear to the court that it was vali<l on the face of it, and if it does not set it out it
is bad on error. Rex r. Wildey, 1 M. & S. 182. It should also aver that the prisoner was

1 Eng. Com. Law Reps, xxxii. 761. ^ lb. xxv. 443. » lb. xxv. 428. •• lb. xxv. 21)9.
» lb. 300. 6 lb. xxvii, 281, ^ lb. x. 199. » lb. x. 106.


A prisoner *Where, upou au indictment for a burglary and stealing tlie goods,
with°bur- ^^^ prosecutor failed to prove any nocturnal breaking, or any larceny,
glary and subsequent to the time when the prisoners entered the house, which must

acquitted by verdict, and that he had judgment quod eat inde sine die, ibid., and it should
conclude with a voucher of the record, ibid. ; it should also aver the identity of the offences
charged in the indictments, and if the name of a person be different in the two indictments
it should aver that the person was as well known by the one name as the other. Rex v.
Sheen, supra, 2 Hawk. P. C. c. 35, s. 3. In Rex v. Iledgcock, 4 Ch. Cr. Law, 530, Kingston
Ass. 1825, it was objected to a plea formed according to the precedent in 4 Ch. Cr. L. 530,
that it was not averred directly that the prisoner pleaded "not guilty" to the former
indictment, and put himself upon the country ; secondlj', that the record of acqviittal was
not referred to or vouched, but the reference was only to the former indictment; thirdly,
that the prisoner had not pleaded over to the felony. Hullock, B., and Littledale, J., decided
that the second objection was clearly tenable, and that there was much weight in the first,
but that as to the third they would even then allow the defendant to plead over to the felony.
For precedents of such pleas, see 4 Ch. Cr. L. 528, et seq ; Rex v. Sheen, supra ; Rex v,
Dann, si/ju-a ; Rex v. Clarke, supra. The crown may either traverse or demur to the plea,
and this may be done ore terms. Rex v. Sheen, supra ; Rex v. Parry, supra. See 4 Ch. Cr.
L. 529, 530, 532, precedents of demurrers and joinders in demurrers to such pleas. See a
plea of autrefois acquit, pleaded puis darrien continuance, 4 Ch. Cr. L. 567. The jury to try
an issue raised on a plea of autrefois acquit, may be either the jury already in the box. Rex
V. Parry, supra, or a A^enire returnable instanter, may be awarded to the sheriff. Rex v.
Sheen, supra ; Rex v. Scott, 1 Leach, 401. Where the prisoner pleads autrefois acquit and
"not guilty" at the same time, the jury cannot be charged to try both the issues at the
same time ; but must first be charged with the issue on autrefois acquit, and if that be
found against the prisoner, then with the issue on " not guilty." Rex v. Roche, 1 Leach,
134. Where any allegation in the plea is traversed on the part of the crown, the pris-
oner begins, as the affirmative lies upon him. Rex v. Sheen, supra ; Rex v. Parry, 7
C. & P. 836. In order to prove the former acquittal, if it took place at a previous assizes,
or in a different court, the prisoner must produce the record regularly drawn up, Res
V. Bowman, 6 C. & P. 101, 337 ; but if it took place at the same assizes, the original indict-
ment, with the notes of the clerk of assize upon it, are sufficient evidence. Rex i\ Home
Tooke, 25 St. Tr. 545 ; Rex v. Parry, supra. In felony, if the plea be decided in favour of
the prisoner the judgment is quod eat inde sine die, 2 Hale, 391. Rex r. Dann, supra. If
the plea be decided against the prisoner, and he has pleaded "not guilty" at the same time
with it, the trial on the merits immediately proceeds. Rex v. Vandercomb, supra. If
autrefois acquit has been pleaded without " not guilt}-," and the plea is determined against
the prisoner, the prisoner then pleads to the felony, and the trial proceeds in the ordinary
course. Rex v. I3irchenough, ante, p. 836 ; Rex i\ Coogan, 1 Leach, 448. The general
rule as we have seen, is that the acquittal pleaded must have been for the same felony, and
it is clear that an acquittal of one felony is no bar to an indictment for another in substance
different, whether committed at the same time or not as that of which the prisoner was
acquitted ; and therefore if a man commit a burglary, and steal the goods of A. and B. and
be indicted for the burglary and stealing the goods of A., and be acquitted, he cannot plead
such an acquittal to an indictment for stealing the goods of B., 2 Hawk. P. C. c. 35, s. 5, or
to an indictment for burglary with intent to steal the goods of A., Rex v. Vandercomb,
supra; or it should seem to an indictment for bux'glary and stealing the goods of B., ibid.
An acquittal of a man as accessory before or after is no bar to an indictment against hira

Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 1) → online text (page 143 of 154)