The plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.

Plea of autrefois acquit.

fois convict.

The plea of autrefois convict, or former conviction for the Plea of autresame identical crime, depends upon the same principle as the former, that no man ought to be twice brought in danger of

his life for the same crime (c).

The plea of autrefois attaint, or a former attainder, is a Plea of autregood plea in bar, if it be for the same offence (d).

fois attaint.

A pardon,
be pleaded be-

which should

fore sentence passed.

is

The prisoner not concluded by any of these pleas.

239.

A pardon may be pleaded in bar, as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict (e). In criminal prosecutions in favorem vitæ, when a prisoner's plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court; still he is not to be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty; for the law allows many pleas, by 2 Hal. P. C. which a prisoner may escape death, but only one plea, in consequence whereof it can be inflicted, viz., on the general issue. The general issue, or plea of not guilty (f), is pleaded by The general the prisoner viva voce at the bar. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he must plead the general issue not guilty, and give this special matter in evidence. For, besides, that these pleas do in effect amount to the general

issue.

(e) By 6 Geo. 4, c. 25, s. 4, the benefit of the allowance of clergy was restricted to the individual charge upon which it was allowed; and now a previous conviction can only be pleaded in bar of any subsequent indictment for the felony of which the defendant has previously been convicted.—Archbold's Crim. Pleading and Evid. by Jervis, 7th ed. p. 86.

(d) By 7 & 8 Geo. 4, c. 28, s. 4, no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment.

(e) See as to the effect of a free or conditional, 7 & 8 Geo. 4, c. 28, s. 13, post, p. 613. (f) By 7 & 8 Geo. 4, c. 28, s. 1, if any person not having the privilege of peerage being arraigned upon any indictment for treason, felony, or piracy, shall plead "not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial; and the court shall in the usual manner order a jury for the trial of such person; and see as to refusing to plead, sec. 2 of the same statute,

ante, p. 595.

2 Hal. P. C. 258.

issue, the charges of a traitorous or felonious intent, are the points and very gist of the indictment, and must be answered directly, by the general negative, not guilty; and the jury upon the evidence, will take notice of any defensive matter, and give their verdict accordingly, as effectually as if it were, or could be, specially pleaded: so that this is, upon all accounts, the most advantageous plea for the prisoner (g).

CHAPTER XXVII.

Of trial.

2 Hal. P. C. 264.

403.

OF TRIAL AND CONVICTION.

WHEN a prisoner, on his arraignment has pleaded not guilty, and for his trial has put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto, that is freeholders, without just exception, and of the visne or 2 Hawk. P. C. neighbourhood: which is interpreted to be of the county where the fact is committed (a). If the proceedings are before the court of queen's bench, there is time allowed between the arraignment and the trial, for a jury to be empanelled by writ of venire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanor is had at nisi prius, unless it be of such consequence as to merit a trial at bar. But before commissioners of oyer and terminer and gaol delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that session, and therefore it is there usual to try all felons immediately or soon Of traversing after their arraignment. But it is not usual (unless by consent the indictment. of parties, or where the defendant is actually in gaol), to try persons indicted of smaller misdemeanors at the same court in which they have pleaded not guilty, or traversed the indict

(g) The clerk of the arraigns, or clerk of the peace, records the plea by writing po se. or ponit se on the record.

(a) See 6 Geo. 4, c. 50, as to the qualification of jurors and the mode of empannelling them, ante, p. 440, and 1 & 2 Vict. c. 4, to remove doubts as to summoning juries at adjourned quarter sessions of the peace.

ment; but they usually give security to the court to appear and try the traverse at the next assizes or session (b).

In cases of high treason, whereby corruption of blood may ensue, or misprision of treason, it is enacted, by 7 Wm. 3, c. 3, that no person shall be tried for any such treason, except an attempt to assassinate the queen, unless the indictment be found within three years after the offence committed; next that the prisoner shall have a copy of the indictment (which includes the caption), but not the names of the witnesses, five days at Foster, 229. least before the trial; also that he shall have a copy of the panel of jurors two days before his trial, and that he shall have the same compulsive process to bring in his witnesses for him as was usual to compel their attendance against him. And by 7 Ann. c. 21, all persons so indicted shall have a list of all the

(3) By 60 Geo. 3, and 1 Geo. 4, c. 4, where any person shall be prosecuted in the queen's bench for any misdemeanor, either by information or indictment, there found or removed into the same courts and shall appear in term time in either of the said courts in person to answer to such indictment or information, such defendant shall not be permitted to imparle to a following term, but must plead or demur thereto within four days from the time of appearance, or in default, judgment may be entered for want of plea; and if he appears by clerk or attorney in court, he cannot imparle to a following term; but a rule requiring him to plead may forthwith be given, and a plea or demurrer to such indictment or information enforced, or judgment by default entered therein, as might have been done before the act in cases where the defendant appeared to the indictment or information by clerk in court, or attorney, in a previous term. But by s. 2, the court or judge, upon sufficient cause, may allow further time to plead or demur. By s. 3, when any person shall be prosecuted for any misdemeanor by indictment at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery, having been committed to custody, or held to bail to appear to answer for such offence twenty days before the session, he shall plead, and trial shall proceed at such same session, unless a writ of certiorari for removing such indictment into the courts of queen's bench shall be delivered at such session before the jury shall be sworn. By s. 4, such writ of certiorari may be applied for and issued before indictment found, as if it had been applied for after indictment found. By s. 5, where any person shall be prosecuted for any misdemeanor by indictment at any session, not having been committed to custody or held to bail twenty days before the session, but who shall have been committed to custody, or held to bail, to appear at some subsequent session, or shall have received notice of such indictment, having been found twenty days before such subsequent session, he shall plead at such subsequent session, and trial shall proceed thereon at such same session, unless a writ of certiorari shall be delivered at such session before the jury shall be sworn. But nothing in the act is to prevent any indictment found by a grand jury of any city or town corporate from being removed at the prayer of any defendant for trial by a jury of the county next adjoining, pursuant to 38 Geo. 3, c. 32, and upon such removal the defendant shall plead, and the trial shall be had according to the provisions of this act. A writ of certiorari may be applied for and issued before such indictment found in the same manner as if applied for after indictment found.

witnesses to be produced, and of the jurors to be empanelled, with their professions and places of abode, ten days before the trial, and in the presence of two witnesses (c). But no person indicted merely for felony is entitled to such copies, before the 2 Hawk. P. C. time of his trial. When the trial is called on, the jurors are to be sworn as they appear, to the number of twelve, unless they are challenged by the party.

410.

Challenges, either for cause or

peremptory.

Challenges may here be made, either on the part of the king, or on that of the prisoner; and either to the whole array, or to the separate polls, for the same reasons that they may be made in civil causes. These are styled challenges for cause (d); but in criminal cases, or at least in capital ones, there is in favorem vitæ allowed to the prisoner, an arbitrary and capricious species of challenge to a certain number of jurors, without shewing any cause at all, which is called a peremptory challenge (e). This privilege, though granted to the prisoner, is denied to the queen, by 33 Edw. 1, st. 4, without assigning a prisoner only. cause, certain to be tried and approved by the court (f). But the queen need not assign her cause of challenge, till all the panel is gone through, and unless there cannot be a full jury

Peremptory challenges allowed to the

(c) By 6 Geo. 4, c. 50, s. 21, when any person is indicted for high treason, or misprision of treason, in any court other than the queen's bench, a list of the petit jury, containing the names, profession, and abode of the jurors, shall be given at the same time that the copy of the indictment is delivered to the party, which shall be ten days before his arraignment, and in the presence of two or more witnesses; and when any person is indicted for high treason, or misprision of treason, in the queen's bench, a copy of the indictment must be delivered within the time and in the manner aforesaid; but the list of the petit jury made out as aforesaid may be delivered to the party indicted at any time after the arraignment, so as the same be delivered ten days before the trial. Where the overt act is the assassination of the queen, or a direct attempt against her life and person, the party accused is by 39 & 40 Geo. 3, c. 93, to be indicted and tried as if for murder.

By 11 Geo. 4, and 1 Wm. 4, c. 66, s. 2, forging the great seal, privy seal, privy signet, royal sign manual, &c., is declared treason, punishable with death. But by 2 & 3 Wm. 4, c. 123, the capital punishment is commuted to transportation for life; and now by 7 Wm. 4 and 1 Vict. c. 84, those offences are punishable with either transportation for life, or seven years, or imprisonment for not exceeding four nor less than two years.

(d) See 6 Geo. 4, c. 50, s. 27, want of qualification in common jurors is cause of challenge, but does not extend to special jurors.

(e) By 6 Geo. 4, c. 50, s. 30, no person arraigned for murder or felony shall be admitted to any peremptory challenge above the number of twenty; and by 7 & 8 Geo. 4, c. 28, s. 3, if any person indicted shall challenge peremptorily beyond the number entitled by law, every peremptory challenge beyond such number shall be void, and the trial shall proceed as if no challenge had been made.

(f) By 6 Geo. 4, c. 50, s. 29, the queen shall only challenge for cause.

without the persons so challenged; and then, and not sooner, 2 Hawk. P. C. the queen's counsel must shew the cause, otherwise the juror shall be sworn.

413.
2 Hal. P. C.

271.

The peremptory challenges of the prisoner are restrained To the number by the common law to thirty-five, that is, under the number of thirty-five by the common of three full juries, and in cases of felony, to twenty. If by law. reason of challenges, or by default of the jurors, a sufficient number cannot be had of the original panel, a tales may be Tales. awarded as in civil causes, till the number of twelve is sworn (g).

400.

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown or prosecution. It was a settled rule at common law, that no counsel 2 Hawk. P. C. should be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law arose proper to be debated; but by 6 & 7 Wm. 4, c. 114, all persons tried for felonies are admitted to make full answer and defence by counsel or attorney (h).

The doctrine of evidence upon pleas of the crown is, in most The evidence. cases, the same as that upon civil actions. There are, however, some points, wherein a difference is made between civil and criminal evidence. In cases of high treason, and misprision of treason, by 1 Edw. 6, c. 12, and 5 & 6 Edw. 6, c. 11, two lawful witnesses are required to convict a prisoner, unless he shall willingly, and without violence, confess the same. And

(g) But in mere commissions of gaol delivery no tales can be awarded, though the court may ore tenus order a new panel to be returned instanter; 4 Inst. 684, St. Tr. 728, Cooke's case.-Original note to B. C. vol. 4, p. 354.

(h) By 6 & 7 Wm. 4, c. 114, in all cases of summary conviction persons accused are allowed to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney. By s. 2, all persons who shall be held to bail, or committed to prison for any offence against the law, are entitled to require and have on demand (from the person who shall have the lawful custody thereof, and who is required to deliver the same), copies of the examinations of the witnesses upon whose depositions they have been held to bail, or committed to prison, on payment of not exceeding three-halfpence for each folio of ninety words. But if such demand be not made before the day of the commencement of the assize or sessions at which such person's trial is to be had, he is not entitled thereto, unless the judge, or other person presiding at such trial, shall be of opinion that such copy may be made and delivered without delay or inconvenience to such trial. The trial may, however, be postponed by the judge for the purpose of affording the party the benefit of such copy. By s. 3, all persons under trial are entitled at the time of their trial to inspect, without fee or reward, all depositions (or copies thereof) which have been taken against them, and returned into the court, before which such trial shall be had.