evidence of the same facts: 32–33 Vic., ch. 21, sec. 74. A person indicted for larceny and duly acquitted, cannot afterwards be indicted for the same facts for obtaining by false pretences, and a person indicted for obtaining by false pretences and acquitted, cannot afterwards be prosecuted for larceny on the same facts: 32-33 Vic., ch. 21, secs. 93 and 99.

And the ruling R. vs. Henderson, 2 Mood. 192; C. & Mar. 328, as cited in Archbold, p. 132, is not law here; but, a reference to the report shows that there was no such ruling in that case, as given in Archbold, and even admitting there had been, it would not have been free from doubt, even in England, where they have not the enactment contained in sec. 99 of our Larceny Act: 2 Taylor, on Evid. par. 1516; though see Reg. vs. Adams, 1 Den. 38.

If a man be indicted in any manner for receiving stolen goods, he cannot afterwards be prosecuted again for the same facts: 32-33 Vic., ch. 21, secs. 100, 101, 102, 103. This rule is equally applicable, though the first indictment be against the defendant jointly with others, and the second against him alone; and upon the first indictment the prisoner has been acquitted, and the others found guilty, because he might have been convicted on the first: R. vs. Dann, 1 Mood. 429.

But the prisoner must have been put in jeopardy on the first indictment. If by reason of some defect in the record, either in the indictment, the place of trial, the process, or the like, the defendant was not lawfully liable to suffer judgment for the offences charged

against him in the first indictment, as it stood at the time of the verdict, he has not been in jeopardy, in the sense which entitles him to plead the former acquittal or conviction in bar of a subsequent indictment: R. vs. Drury, 3 C. & K. 190; Reg. vs. Green, Dears & B. 113.

"In general," says Starkie, Cr. Pl. 320, "where the original indictment is insufficient, no acquittal founded upon that insufficiency can be available, because the defendant's life was never really placed in jeopardy, and therefore, the reason for allowing the plea entirely fails."

And in almost the same terms, Chitty, 1 Cr. L. 454, says: "And hence we may observe that the great general rule upon this part of the subject is, that the previous indictment must have been one upon which the defendant could legally have been convicted, upon which his life or liberty was not merely in imaginary, but in actual danger, and consequently in which there was no material error.

Upon the same principle, where the defendant was acquitted merely on some error of indictment, or variance in the recitals, he may be indicted again upon the same charge, for the first proceedings were merely nugatory. Thus, if an indictment for larceny lay the property in the goods in the wrong person, the party may be acquitted, and afterwards tried on another, stating it to be the property of the legal owner."

And even now, that an amendment is allowed in such a case, and that the Court, on the first indictment, might have substituted the name of the legal owner

for the wrong one first alleged, if the indictment was not, in fact, so amended, the plea of autrefois acquit cannot be sustained; the indictment must be considered as it was, not as it might have been made; the Court was not bound to amend, and the indictment to be considered is the indictment upon which the jury in the first case gave their verdict: Reg. vs. Green, Dears. & B. 113.

An abortive trial without verdict cannot be pleaded as an acquittal; the acquittal, in order to be a bar, must be by verdict on a trial. Thus, if after the jury are sworn, and the prisoner given in charge to them, the Judge, in order to prevent a failure of justice by a refusal of a witness to give his evidence, or by reason of the non-agreement of the jury to a verdict, or by reason of the death or such illness of a juryman as to necessitate the discharge of a jury before verdict, does so discharge them without coming to a verdict: Reg. vs. Winsor, 10 Cox, 276; 7 B. & S. 490; Reg. vs. Charlesworth, 1 B. & S., 460; 1 Burn's Justice, 348; 2 Russell, 62, note by Greaves; Reg. vs. Ward, 10 Cox, 573.

A previous summary conviction for an assault is not a bar to an indictment for manslaughter of the party assaulted, dead since, founded upon the same facts: Reg. vs. Morris, 10 Cox, 480.

A person was acquitted of an assault with intent to murder, but was convicted of an assault with intent to do grievous bodily harm, and the prosecutor having

subsequently died, he was indicted for murder, and it was held right: Reg. vs. Salvi, 10 Cox, 481.

And these two cases seem based on a very just principle. There can never be the crime of murder till the party assaulted dies: the crime has no existence, in fact or law, till the death of the party assaulted. Therefore it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party. That new element of the injured person's death is not merely a supervening aggravation, but it creates a new crime: per Lord Ardmillan, in Stewart's case (Scotland), cited in 1 Bishop, Cr. L. 1059.

A man steals twenty pigs at the same time, can he be charged with twenty larcenies of one pig, in twenty different indictments? After verdict on the first indictment, can he maintain a plea of autrefois acquit or autrefois convict in answer to the subsequent indictments?

It can be said that, in principle, a man who steals twenty pigs, at the same time, commits but one larceny, but one criminal act. Suppose a man steals a bag containing three bushels of potatoes, could he be charged with three larcenies of one bushel each, in three different indictments, or with two larcenies in two indictments, one of the bag, and one of the potatoes? Or if a man steals ten pounds in ten onepound notes, can he be charged in ten different indict

ments with ten different larcenies of one pound? If that could be done, then why should it not be allowed to reduce the ten pounds into dollars, and have forty crimes and forty indictments?

Then A., at one shot, murders B. and C., though the shot was directed at B. only; has he committed one murder or two murders? If he is tried for the murder of B. and acquitted, can he plead autrefois acquit to an indictment charging him with the murder of C? Of course not. He is guilty of two murders.

In all these cases there has been only one criminal act, only one actual execution of a criminal design, only one guilty impulse of the mind; yet it appears to be settled that where several chattels are stolen at the same time, an acquittal on an indictment for stealing one of them is no bar to an indictment for stealing another of them, although it appear that both were taken by the same act: Cr. L. Commrs'. 8th Rep., 5th

July, 1845.

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And thus it hath happened," says 2 Hale, P. C. 245, "that a man acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, though both were done at the same time." And in Reg. vs. Brettel, C. & M. 609; 2 Russell, 60, it was held that where the prisoner had been convicted of stealing one pig, he might be tried for stealing another pig at the same time and place; but, as the prisoner was undergoing his sentence upon the conviction already given against him, the Judge (Cresswell, J.) thought that the second indictment should be abandoned, and this was done.

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