Traversing or Postponing Trial. 1 By 14 & 15 Vict. c. 100, s. 27, no person prosecuted shall be entitled to traverse or postpone the trial of any indictment found against him he pleaded autrefois acquit, R. v. Vandercomb, 1 Leach, 712, note (a), and see R. v. Welsh, R. & M. C. C. R. 175, but in subsequent cases the plea of autrefois acquit has been pleaded alone. R. v. Sheen, ante, p. 44; R. v. Parry, supra: R. v. Birchenough, ante, p. 48; R. v. Welch, Carr. Supp. 56, and see 2 Hawk. P. C. 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. R. 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. R. v. Taylor, 3 B. & C. 502. The plea must formerly have set out the former indictment in order that it might appear to the Court that it was valid on the face of it. R. v. Wildey, 1 M. & S. 182. It must also have averred that the prisoner was acquitted by verdict, and that he had judgment quod eat inde sine die, ibid., and it must have concluded with a voucher of the record, ibid.; it must also have averred the identity of the offences charged in the two indictments, and if the name of a person were different in the two indictments, it must have averred that the person was as well known by the one name as the other. R. v. Sheen, supra, 2 Hawk. P C. c. 35, s. 3. R. v. Austin, 2 Cox, C. C. 59. R. v. Hedgcock, 4 Ch. Cr. Law, 530, Kingston, Ass. 1825. For precedents of such pleas, see 4 Ch. Cr. L. 528, et seq.; R. v. Sheen, supra; R. v. Dann, supra; R. v. Clarke, supra. The Crown might either traverse or demur to the plea, and this might be done ore tenus. R. v. Sheen, supra; R. 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 darrein continuance, 4 Ch. Cr. L. 567. But now by the 14 & 15 Vict. c. 100, s. 28, 'in any plea of autrefois convict or autrefois acquit it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offence charged in the indictment. As to the forms of pleas under this section, see Greaves' Campb. Acts, p. 88. It should seem that the Crown can only traverse a plea pleaded under this section. The jury to try an issue raised on a plea of autrefois acquit, may be either the jury already in the box, R. v. Parry, supra, or a venire returnable instanter may be awarded to the sheriff. v. Sheen, supra; R. v. Scott, 1 Leach, 401. R. 134. R. v. 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.' R. v. Roche, 1 Leach, Where any allegation in the pleas was traversed on the part of the Crown, the prisoner began, as the affirmative lay upon him. R. v. Sheen, supra; R. v. Parry, 7 C. & P. 836. And where a plea is pleaded under the 14 & 15 Vict. c. 100, s. 28, it is clear the prisoner must begin. [As to the mode of proof of former acquittal, see vol. 3, Evidence.] In felony, if the plea be decided in favor of the prisoner, the judgment is quod eat inde sine die, 2 Hale, 391. R. v. 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. R. v. Vandercomb, supra. If autrefois acquit has been pleaded without not guilty,' and the plea is determined against the prisoner, the prisoner then pleads to the felony, and the trial proceeds in the ordinary course. Birchenough, ante, p. 48; R. v. Coogan, 1 Leach, 448. [In misdemeanors the judg ment is final, R. v. Goddard, 2 Ld. Raym. 922; 2 Hale, 256.] 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., R. v. Vandercomb, supra; or, it should seem, to an indictment for burglary and stealing the goods of B., ibid. An acquittal of a man as accessory before or after is no bar to an indictment against him as a principal, 2 Hawk. P. C. c. 35, s. 12; nor is an acquittal as principal any bar to an indictment as accessory after, 2 Hawk. P. C. c. 35, s. 11, 2 Hale, 244. It is said to have been held that an acquittal of a man as accessory to one principal will not save him from being arraigned as accessory to another in the same fact. 2 Hawk. P. C. c. 35, AMERICAN NOTE. 1 See Bishop, i. s. 354. at any session of the peace, session of oyer and terminer, or session of gaol delivery: provided always that if the court, upon the applica s. 13. But it is presumed this would only apply where the acquittal of the principal necessarily caused the acquittal of the acces sory, see R. v. Woolford, 1 M. & Rob. 384, post, and not where the accessory might be convicted on a count for a substantive felony, although the principal were acquitted. See R. v. Pulham, 9 C. & P. 280. We have seen that an acquittal upon a charge of jointly receiving with others is a good bar to an indictment against one of the prisoners alone. R. v. Dann, supra. It is said to be a general rule that a bar in action of an inferior nature will not bar another of a superior nature. 2 Hawk. P. C. c. 35, s. 5. [See R. v. Morris, L. R. 1 C. C. R. 90; 36 L. J. M. C. 84.] Therefore an acquittal of a misdemeanor would not be a bar to an indictment for a felony, or, vice versa, an acquittal of a felony be a bar to an indictment for a misdemeanor. But see now the 14 & 15 Vict. c. 100, s. 12, as to an acquittal of a misdemeanor. [Where upon the trial the offence turns out to be a felony, see post; and see 24 & 25 Vict. c. 96, s. 88, where upon a trial for obtaining money by false pretences a larceny is proved. And see 24 & 25 Vict. c. 96, s. 72, as to indictments for embezzlements; and see 24 & 25 Vict. c. 96, ss. 91, 94, as to indictments for receiving stolen goods. See also 14 & 15 Vict. c. 100. s. 9, as to a person not being acquitted where on a trial for a felony or misdemeanor, an attempt only to commit the offence is proved; and see 24 & 25 Vict. c. 96, s. 41, as to indictments for robbery.] Yet it seems that an acquittal on an indictment for murder was a bar to an indictment for petit treason, because both offences were in substance the same. 2 Hawk. P. C. c. 35, s. 5; 2 Hale, 246. So an acquittal of murder is a good bar to an indictment for manslaughter, 2 Hale, 246; and so an acquittal of manslaughter is a good bar to an indictment for murder, for the offences only differ in degree, and the fact is the same. 2 Hale, 246; Holcroft's case, 4 Rep. 46 b. Where a prisoner is indicted for a compound offence, as burglary, robbery, murder, &c., and altogether acquitted, it should seem that such acquittal is a good bar to every felony included in such compound offence, of which he might have been convicted on the trial of such compound offence; thus an acquittal on a burglary charging a stealing of goods would be a good bar to an indictment for stealing the same goods, for on the indictment for burglary he might have been acquitted of the burglary and convicted of the larceny only; and although it is said, 2 Hale, 246, that if a man be 'indicted for burglary and acquitted, yet he may be indicted for the larceny, for they are several offences, though committed at the same time;' yet this must be intended of an indictment for burglary with intent to steal the goods, as is evident from the words which follow; and burglary may be where there is no larceny, and larceny may be where there is no burglary.' And so long as a party indicted for a felony, including an assault, might be convicted on such an indictment of an assault under the 1 Vict. c. 85, s. 11 (repealed by 14 & 15 Vict. c. 100, s. 10), an acquittal on such an indictment was held a good bar to an indictment for the same assault. R. v. Gould, 9 C. & P. 364; R. v. Bird, 2 Den. C. C. 94. So, whilst the 1 Vict. c. 85, s. 11, was in force, an acquittal or conviction of a common assault before two justices of the peace under the 9 Geo. 4, c. 31, s. 27, was held to be a bar to an indictment for feloniously wounding with intent to maim, &c., in the same transaction. R. v. Walker, 2 M. & Rob. 446, Coltman, J. Where, on an indictment for a rape, the evidence failed to support that offence, Pollock, C. B., directed an acquittal, though under the 1 Vict. c. 85, s. 11, there might have been a conviction of an assault; and said that this acquittal would not support a plea of autrefois acquit to an indictment for an assault with intent to commit a rape. R. v. Gisson, 2 C. & K. 781. And on an indictment for feloniously stabbing with intent to do grievous bodily harm, the evidence to prove the felony being insufficient, and it appearing to be a mere question of assault, Pollock, C. B., directed an acquittal, and said, 'It had better be inquired of in another tribunal.' R. v. Goadby, 2 C. & K. 782 note (a). This and the preceding case seem very questionable. Generally speaking, an acquittal in one county can only be pleaded in the same county, because all indictments are local, and if the first were laid in an improper county, the defendant could not be found guilty upon it, 2 Hawk. P. C. c. 35, s. 3; 2 Hale, 245; and if the first indictment were laid in the proper county the second must be an improper one, and therefore the defendant, not being liable to be found guilty upon it, is not put to plead autrefois acquit. 2 Hawk. P. C. c. 35, s. 3. But there seem to be many exceptions to this rule. Thus, where a man steals goods in one county, and carries them into another, as he may be indicted in either, it seems but reasonable that he should plead the acquittal in one county in bar to a subsequent indictment in the other county, 2 Hawk. P. C. c. 35, s. 4; but this point does not seem settled; and Lord Hale, 2 P. C. 245, says, it seems that an acquittal in the county into which the goods are carried is no bar, because it may be the goods were never brought into that county, and so the felony may not have been in question; but this reason rather tends to show that an acquittal in the county where the goods were stolen would be a bar to an indictment in the county into which they tion of the person so indicted or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such court may adjourn the trial of such person to the next subsequent session, upon such terms as to bail or otherwise as to such court shall seem meet, and may respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent session without entering into any fresh recognizance for that purpose. A person committed for felony can insist on being indicted at the sessions or assizes to which he is committed if the witnesses for the Crown are ready. (i) If, however, it appears upon oath that the witnesses for the Crown cannot then be produced, he may be committed to the next assizes or sessions without being released on bail, and the judge has power again to postpone the trial if there is material evidence for the Crown which cannot then be produced; (k) but it seems that the presentment of a bill to the grand jury cannot be postponed on the ground that there are other charges which may be brought against the prisoner. (1) A trial has been postponed on the were carried, for in such case the felony must have been in question. If A. rob B. in the county of C., and carry the goods into D., though he cannot be indicted of robbery in D., yet he may of larceny, and if acquitted, that acquittal of larceny is no bar to an indictment for robbery in C., because it is another offence. 2 Hale, 245. So if A. commit a burglary in the county of B., and carry the goods into C., if he be acquitted of larceny in C. he may be indicted for the burglary in B., ibid. Where an acquittal pleaded in a foreign county has been allowed, as in 41 Ass. 9, it must be intended of an indictment removed out of that county where the prisoner was first indicted. 2 Hale, 245. The correct rule appears to be that an acquittal in any court whatsoever, which has jurisdiction over the case, is a good bar to any subsequent prosecution for the same crime. 2 Hawk. c. 35, s. 10. And therefore an acquittal for murder at a grand session in Wales may be pleaded to an indictment for the same murder in England, ibid. So an acquittal of murder before a court of competent jurisdiction in a foreign country is a good bar to an indictment for the same murder in this country. R. v. Roche, 1 Leach, 134; R. v. Hutchinson, 3 Keb. 785, cited in Beak v. Thyrwhit, 3 Mod. 194, 1 Show. 6. And it should seem that in all those cases where offences are made triable in two or more counties, as each county has jurisdiction, an acquittal in one would be a good bar to an indictment in the other county. The acquittal, in order to be a bar, must be by verdict on a trial. 2 Hale, 246; 2 Hawk. P. C. c. 35, s. 6. A discharge, therefore, by the jury on a coroner's inquest is no bar. 2 Hale, 246. But an acquittal through the misdirection of a judge is a good bar, ibid. So if a court upon a special verdict erroneously adjudge it to be no felony, as long as this judgment is unreversed, the prisoner may plead it in bar to another indictment, ibid.; but if the judgment be reversed the party may be indicted de novo, ibid., R. v. Drury, 3 C. & K. 193; 18 L. J. M. C. 189, for a judgment reversed is the same as no judgment. This note is by Mr. Greaves, except the parts within brackets. [A jury sworn and charged with a prisoner may be discharged without giving a verdict if a necessity requires it. The judge at the trial is to decide whether such necessity has arisen, and his decision is not subject to review. Such a discharge is not a bar to a subsequent trial of the prisoner for the same offence, either upon the same or a fresh indictment, Winsor v. R. 35 L. J. M. C. 161, 121; L. R. 1 Q. B. 289; ib. 390, Ex. Ch. This was an indictment for murder.] In a recent capital case in which a juryman during the course of the trial separated himself from his fellows and mingled with the outside public, Kennedy, J., directed the jury to be discharged, and a fresh jury being subsequently empanelled, the prisoner was tried and convicted. R. v. Macrae, Northampton Assizes, Dec. 1892.2 (i) 31 Car. II. c. 2, s. 6. (j) R. v. Chapman, 8 C. & P. 558. (k) R. v. Bowen, 9 C. & P. 509, and see R. v. Dripps, 13 Cox, C. C. 25. (7) R. v. Heeson, 14 Cox, C. C. 40. AMERICAN NOTES. 1 See Bishop, i. ss. 1034, 1035. 2 The same course seems to be adopted in America, see Bishop, i. s. 1038. ground that infection might be conveyed to the public by bringing into court witnesses for the Crown who were themselves able to travel, but came from an infected place. (m) Amendment of Indictment at the Trial. The 9 Geo. 4, c. 15, after reciting that great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and such record cannot now in any case be amended at the trial, and in some cases cannot be amended at any time,' enacts that it shall and may be lawful for every court of record holding plea in civil actions, any judge sitting at nisi prius, and any court of oyer and terminer and general gaol delivery in England, Wales, the town of Berwick-uponTweed, and Ireland, if such court or judge shall see fit so to do, to cause the record on which any trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) to the other party as such judge or court shall think reasonable, and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at nisi prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued shall be amended accordingly.' It was held in two cases that amendments ought to be made very sparingly under this statute. (n) But where an indictment for perjury alleged that the defendant produced an affidavit entitled in the Court of Chancery, and in the suit therein at the suit of E. J. Christian, and in the suit therein at the suit of the Commissioners of Charitable Donations and Bequests in Ireland, and the affidavit when produced was entitled In Chancery between the Commissioner of Charitable Donations and Bequests in Ireland,' &c., Lord Denman, C. J., ordered the record to be amended by striking out the word 'entitled.' (o) And where an indictment for perjury stated that the defendant made an affidavit in which (amongst other things) he swore that an officer, who had arrested him, was appointed at the special instance and part of the said plaintiff,' and the affidavit itself stated that the officer was appointed at the special instance and peril of the said plaintiff,' it was held that the indictment might be amended, no assignment of perjury being made upon that averment. (p) The same indictment set out another part of the affidavit (on which also there was no (m) R. v. Taylor, 15 Cox, C. C. 8. No objection seems to have been taken by the prisoner to the postponement. (n) R. Cooke, 7 Č. & P. 559, Patteson, J., and Littledale, J. R. v. Hewins, 9 C. & P. assignment of perjury) thus: the officer went round to the door of the back kitchen of the deponent's said dwelling-house, which is the only outer door of the same,' and in the affidavit itself the words. were the only other outer door,' and it was held that this variance might be amended. (q) The 11 & 12 Vict. c. 46, s. 4, recites that 'a failure of justice frequently takes place in criminal trials by reason of variances between writings produced in evidence and the recital or setting forth thereof in the indictment or information, and the same cannot now be amended at the trial, except in cases of midemeanor,' and enacts that it shall and may be lawful for any court of oyer and terminer and general gaol delivery, if such court shall see fit so to do, to cause the indictment or information for any offence whatever, when any variance or variances shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof in the indictment or information whereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amendment the trial shall proceed in the same. manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance or variances had appeared.' By the 12 and 13 Vict. c. 45, s. 10, 'every court of general or quarter sessions of the peace, on the trial of any offence within its jurisdiction, whenever any variance or variances shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof in the indictment, shall have the same power in all respects to cause the indictment to be amended which is given to courts of oyer and terminer and general gaol delivery with regard to offences tried before such last-mentioned courts by virtue of an Act (11 & 12 Vict. c. 46, supra), and after such amendment the trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance or variances had appeared.' The 14 and 15 Vict. c. 100, reciting that offenders frequently escape conviction on their trials by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case: and whereas such technical strictness may safely be relaxed in many instances, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence:' enacts, by sec. 1, that 'whenever on the trial of any indictment (r) for any felony or misdemeanor there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged or intended to be injured or (q) R. v. Newton, supra. (r) See the interpretation clause, s. 30, ante, p. 26. |