case, therefore, evidence of the breaking and entering with intent to steal, was rightly held not to be sufficient to support the indictment charging the prisoner with having broken and entered the house, and stolen the goods stated in the first indictment; and if crimes are so distinct, that evidence of the one will not support the other, it is as inconsistent with reason as it is repugnant to the rules of law, to say that they are so far the same that an acquittal of the one shall be a bar to a prosecution for the other."

The learned judge then observed upon the cases which had been cited on behalf of the prisoners, in support of the proposition contended for by their counsel; namely, Turner's case(y) and the case of Jones (z) In Turner's case it was agreed that the prisoner, having been formerly indicted for burglary, in breaking the house of a Mr. Tryon, and stealing his goods, and acquitted, could not be indicted again for the same burglary, in breaking his house, and stealing therein the money of one Hill (a servant of Mr. Tryon), but that he might be indicted for felony in stealing the money of Hill. Upon this case Buller, J., observed: "The decision was not a solemn judgment, for the prisoner was not indicted a second time for the burglary; it was merely a direction from the judges to the officer of the Court how to draw the second indictment for the larceny; and it proceeded upon a mistake, as I shall presently show. If the judges in that case exercised a little lenity before the indictment, which might more properly have been done after conviction, much censure could not fall on them. But they proceeded on the ground that Turner having been indicted for burglary in breaking the house of Mr. Tryon, and stealing his goods, and acquitted thereof, could not be again indicted for the same burglary for breaking the house, though he might be indicted for stealing the money of Hill, for which he had not been indicted before: and he was indicted accordingly. The *54] judges, therefore, must have conceived that the breaking the house and the *stealing the goods were two distinct offences; and that breaking the house only constituted the crime of burglary; which is a manifest mistake, for the burglary consisted in breaking the house and stealing the goods; and if stealing the goods of Hill was a distinct felony from that of stealing the goods of Tyron, which it was admitted to be, the burglaries could not be the same.'

With respect to the case of Jones and Bever, the learned judge said, that it proceeded entirely upon the decision in Turner's case; and that the foundation failing, the superstructure could not stand. (a)

The learned judge then referred to several authorities, (b) and continued, "These cases establish the principle, that unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. Now, to apply the principle to the present case: the first indictment was for burglariously ing goods, will not be supported by evidence of a breaking and entering, &c., with intent to steal them. But it has been supposed that an indictment for breaking and entering, &c., with intent to steal, would be supported by evidence of breaking and entering, &c., and an actual stealing, ante, p. 44. If this be so, the report of the judgment delivered by Mr. J. Buller, as here given, states the point too largely; as it seems to go to the extent of saying that evidence of a breaking and entering, and a felony actually committed, will not support an indictment for a breaking and entering, &c., and a felony intended to be committed. In 2 East P. C. c. 15, s. 29, p. 520, the learned author observes upon this case, and says, "Quære, whether the definition of the crime be not solely resolvable into the breaking, &c., with an intent to commit felony; of which the actual commission is such a strong presumptive evidence that the law has adopted it, and admits it to be equivalent to a charge of the intent in an indictment. And therefore an indictment charging the breaking, &c., to be with intent to steal, is said to be supported by proof of actual stealing; though certainly not vice versa."

(y) Kel. 30.

(2) Kel. 52.

(a) Rex v. Jones, Kel. 52. The prisoners were indicted for burglariously breaking and entering the dwelling-house of Lord Cornbury, and stealing his goods therein; and, being acquitted, were afterwards indicted for the same burglary, in breaking and entering Lord Cornbury's house, and stealing the goods of a Mr. Nunnesy; and it was agreed that, as they had been before acquitted, they could not be indicted again for the same burglary, but that they might be indicted for the felony in stealing the goods of Mr. Nunnesy, precisely as had before been done in Turner's case.

(b) 2 Hawk. P. C. c. 35, s. 3; Fost. 361, 362; Rex v. Pedley, 1 Leach 242.

breaking and entering the house of Miss Nevills, and stealing the goods mentioned; but it appeared that the prisoners broke and entered the house with intent to steal, for, in fact, no larceny was committed, and therefore they could not be convicted on that indictment. But they have not been tried for burglariously breaking and entering the house of the Miss Nevills with intent to steal; which is the charge in the present indictment, and therefore their lives have never been in jeopardy for this offence. For this reason, the judges are all of opinion that the plea is bad; that there must be judgment for the prosecutor upon the demurrer; and that the prisoners must take their trials on the present indictment." And the prisoners were accordingly tried and convicted. (c)

In the preceding case the property in the goods was laid differently in the twoindictments. The first, upon which the prisoners had been acquitted, stated some of the goods stolen to belong to M. Nevill, others to A. Nevill, and others to S. Gibbs; and the second indictment stated the goods intended to be stolen to belong to M. and A. Nevill only. And it is said that Buller, J., in delivering the opinion of the judges on the case, observed, that the property in the goods was differently described in the two indictments, and said that this might afford another objection to the plea; but that he had not entered into the consideration of the circumstance, as the case did not require it. (d) And the ancient doctrine, that a person indicted and acquitted for breaking and entering a dwelling-house in the night, and there stealing the goods of one person, could not be afterwards indicted for the same *breaking and entering, and stealing the goods of another person, appears to [*55 have been overruled in this case, when the authorities by which it was supposed to have been established were denied to be law. (e) It may be mentioned. also, that the 7 & 8 Geo. 4, c. 28, s. 4, enacts that "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."

In a latter case, the doctrine was recognized that a plea of autrefois acquit is no bar, unless the facts charged in the second indictment would have warranted a conviction upon the first. So that if the offence charged in the second indictment is

(e) Rex v. Vandercomb, 2 Leach 708; 2 East P. C. c. 15, s. 29, p. 519. (d) 2 East P. C. c. 15, s. 29, p. 519, note (b).

(e) Viz. Turner's case, and Jones's case, ante, p. 53.

1 Roberts v. State, 14 Geo. 8; State v. Birmingham, Busbee 120; State v. Casey, Ibid. 209; State v. Small, 31 Mo. 197. The plea of autrefois acquit is insufficient whenever the proof shows the second case to be the same transaction with the first, although the offence is called by a different name: Holt v. State, 38 Geo. 187. An acquittal on an indictment for seduction is a bar to a subsequent indictment for fornication and bastardy, founded on the same act: Dinkey v. Comm., 5 Harris 126. When the gravamen of a riot is an assault and battery, a final judgment in the prosecution for the assault will bar a prosecution for the riot: Winingee v. State, 13 Ind. 540. A party charged with an assault and convicted cannot afterwards be punished for the battery committed at the same time: State v. Chaffin, 2 Swan 493 An acquittal upon an indictment for the larceny of an article is a bar to an indictment for the larceny of another article, belonging to the same person, taken at the same time and with the same intent: Fisher v. Comm., 1 Bush 211; Jackson v. State, 14 Ind. 327; State v. Marphin, 37 Mo. 373. A defendant indicted for a higher but only convicted of a lower offence is acquitted of the higher, and cannot be again indicted therefor: People v. Apgar, 35 Cal. 389; State v. M'Cree, 39 Mo. 112; State v. Butman, 42 N. H. 490; Comm. v. Burke, 14 Gray 100; Comm. v. Garland, 3 Met. (Ky.) 478. But in an indictment for burglary, the prisoner was charged also with committing robbery as a part of the same transaction, was convicted and sentenced. He was afterwards tried for the same robbery, as a separate offence, pleaded autrefois convict and was discharged. He was again brought to trial on his bill for burglary, pleaded autrefois acquit (by the discharge aforesaid), held that the plea was not valid: Copenhaven v. State, 15 Geo. 264. The plea of former acquittal on an indictment charging that the defendant did certain acts with intent to kill A. B., is no bar to an indictment charging the doing of the same acts with intent to kill C. D.: People v. Warren, 1 Parker C. R. 338. Acquittal of murder by shooting is no bar to an indictment for same killing by beating: Gwedel v. People, 43 Ill. 226. The defendant, with three others, was convicted of an affray, for beating in public one M. During the affray the prosecutrix went up to protect M., who was her son, and the defendant struck her-held that the conviction for the affray was no bar to an indictment for this assault and battery: State v. Parish, 8 Rich 322. It is no bar to an indictment for riot that the same party has been tried, convicted, and fined for

in one king's reign, and the first indictment was confined by the contra pacem to the preceding reign, an acquittal upon the first could not be pleaded in bar to the second. To an indictment for keeping a gaming-house in the time of Geo. 4, the defendant pleaded that at a sessions, in 4 Geo. 4, he was indicted, for that he, on the 18th of January, 57 Geo. 3, and on divers other days between that day and the taking of that inquisition, kept a gaming-house, against the peace of our said lord the king; that he was tried and acquitted, and that the offence in both indictments was the same. To this there was a demurrer, and it was urged that the contra pacem in the first indictment tied up the prosecutor to the proof of an offence in the time of George 3; for George 3 being the only king named in that indictment, "our said lord the king," in that indictment, must have referred to him, 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.(f)

Where a prisoner has been acquitted on a trial for rape, he may nevertheless be convicted of an assault; for on the former trial he could only have been convicted of rape or of an attempt to commit it.(ff)

The prisoner was indicted for stealing twenty-five pounds weight of copper from his masters, and acquitted; he was afterwards indicted for stealing a riddle and five shovels from his masters; there was no evidence in either case to show on what particular day or month either the copper, riddle, or shovels were stolen; and, on a case reserved, it was held that the acquittal on the first indictment was no bar to the second indictment.(99)

(f) Rex v. Taylor, 3 B. & C. 502 (10 E. C. L. R.). (ff) Reg. v. Dungey, 4 F. & F. 99.

(gg) Reg. v. Knight, L. & C. 378.

an assault and battery arising out of the same transaction: Freeland v. People, 16 Ill. 380. A. was indicted for an assault and battery on B., and convicted. B. afterwards died of the blows then inflicted-held that the former conviction was no bar to an indictment for manslaughter for the same offence: Burns v. People, 1 Parker C. R. 182. An acquittal of burglary with intent to commit larceny is no bar to a prosecution for the larceny: State v. Warner, 14 Ind. 572. Acquittal of larceny is no bar to indictment for receiving: Foster v. State, 39 Ala. 229. Acquittal of larceny no bar to indictment for false pretences: Dommick v. State, 40 Ala. 680. Nor for conspiracy to commit it: State v. Sias, 17 N. H. 558. Acquittal of felony no bar to misdemeanor, and vice versa: People v. Saunders, 4 Parker C. R. 196. A party may be subjected to a double punishment for the same act under the laws of the State and of the United States: State v. Rankin, 4 Cold. 145. A former conviction or acquittal is no defence to a second indictment if the former trial was brought about by the procurement of the defendant, and the conviction or acquittal was the result of fraud and collusion on his part: State v. Green, 16 Iowa 239. Guilty on one count is an acquittal on the others-on new trial defendant cannot be convicted on any of them: State v. Kattlemann, 35 Mo. 105. The plea of autrefois convict is good, although it appear that after verdict at the former trial the indictment was dismissed and the defendant discharged without day: State v. Elden, 41 Maine 165; People v. Marsh, 6 Cal. 543. The court may pass upon the question of former conviction where there is no question as to identity: State v. Haynes, 36 Verm. 667. Nol. pros. after trial against the consent of the prisoner for want of sufficient evidence is an acquittal: State Conner, 5 Cold. 311. The public prosecutor finding himself unprepared with proper evidence withdrew a juror by leave of the court and against the prisoner's objection-held that he could not be put on his trial again: Klock v. People, 2 Parker C. R. 676. On an indictment where a jury can convict a defendant of a lesser offence, then an acquittal for the major crime is a bar to a subsequent indictment for the minor offence: State v. Standifer, 5 Port. 523. As if one be indicted for murder and acquitted, he could not be again indicted for manslaughter. So where one is indicted on a charge of burglary he cannot be tried again for larceny. The same individual, however, may at the same time, and in the same transaction, commit two or more distinct crimes, and an acquittal of one will not be a bar to punishment for the other; thus, to an indictment for an assault on J. L. with intent to murder, it cannot be pleaded in bar that defendants had previously been acquitted on an indictment for the murder of L. L; the transactions inducing the indictment being averred to have been identical: Id. To entitle the prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crime charged in the last bill of indictment, be precisely the same with that charged in the first, and also that the first indictment be good in point of law: Hite v. State, 9 Yerg. 357. Where judgment is arrested for a defect in the indictment the prisoner is not entitled to his discharge, but may be remanded for trial upon a new indictment for the same offence: State v. Holley, 1 Brev. 35.

It seems that an acquittal of an offence charged as a larceny cannot be pleaded in bar to an indictment for the same offence charged as a false pretence, for the defendant was not in jeopardy for the misdemeanor on the trial for the larceny, and the acquittal of the larceny may have proceeded on the ground that the offence did not amount to a felony.(g)

So an acquittal for murder by poison cannot be pleaded in bar to an indictment for feloniously administering poison with intent to murder; for, although the 14 & 15 Vict. c. 100, s. 9, empowers the jury to convict of an attempt to commit a murder on the trial of an indictment for murder, that would only be a misdemeanor, and a totally different offence from the statutory felony of administering poison with intent to murder.(h)

An acquittal on a coroner's inquisition for murder of an infant, is a bar to an indictment for concealing the birth of the same child.(i)

On an indictment for stealing two pair of boots, the property of Rowland [*56 B., who was the son of John B, to whom the boots really belonged, the mistake in the ownership was discovered, and an acquittal taken, and a fresh bill describing the boots as the property of John B. having been found, the prisoner pleaded autrefois acquit to it; and on the trial of this plea Rowland B. proved that the boots were the property of his father, and that he had worked in the shop till one o'clock, when he succeeded his father in charge of the stall, from whence the boots were stolen while he was in charge, his father returning home; he was fourteen years old, and lived with and worked for his father, who supported him, but paid him no wages: it was contended that Rowland B. was a bailee of the goods, and therefore they were properly described as his property in the first indictment. 2dly. That the indictment might have been amended under the 14 & 15 Vict. c. 100, s. 1, and therefore the prisoner might have been convicted on the first indictment. But these points were overruled, and the jury found that the goods were the property of John B., and the same as those described in the first indictment as the property of Rowland B.; and upon a case reserved, it was held that the son was not a bailee, but a servant, and that the goods remained all the time in the father's possession; and that the first indictment must be considered in the state in which it was, and not in that in which it might have been, and consequently the prisoner had been acquitted upon an indictment, upon which she never was in peril of a conviction.(j)

If a prisoner could have been legally convicted upon an indictment upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment, and it is immaterial whether the proper evidence was adduced at the first trial or not. A plea of autrefois acquit must only set forth the record of one acquittal; if it were to set forth two, it would be bad, for duplicity, but it seems that the Court would take care that the prisoner should not be prejudiced by pleading one acquittal instead of the other. To an indictment for the murder of a child, described in different counts as Charles William, William, &c., the prisoner pleaded that at a former delivery of the gaol of Newgate he had been indicted, tried, and acquitted of the 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, &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

:

(g) Reg. v. Henderson, 2 M. C. C. R. 192; C. & M. 328 (41 E. C. L. R.). It is clear that this would have been the case before the 7 & 8 Geo. 4, c. 29, s. 53, because on a trial for larceny there could not be a conviction of obtaining goods by false pretences, and that section did not alter the case of a trial for larceny, but only prevented an acquittal of false pretences if the offence turned out to be larceny.

(h) Reg. v. Connell, 6 Cox C. C. 178.

(i) Reg. v. Ryland, Glouc. Sum. Ass. 1845, Atcherley, Serjeant, after consulting Tindal, C. J., MSS., C. S. G.

(j) Reg. v. Green, D. & B. 113.

plea, insists on two records, his plea would be double,(k) but if in the course of the *57] 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 Lydia Beadle;" a witness proved the identity of the child, and that his mother was an unmarried woman, named Lydia Beadle, 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 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 that he had never heard him called so. Burrough, J., (in summing up) "The question 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 descriptions 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? And 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 Rex v. Clark(1) 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 if you think that he was known at all by these names, you ought to find a verdict for the prisoner."(m)

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 *58] 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.(n)

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

(k) But see Ashford v. Thornton, 1 B. & Ald. 423, where a plea by the defendant contained an averment of an acquittal both on an indictment for murder and on an indictment for a rape, as well as an allegation of an alibi, and divers other facts tending to prove the defendant's innocence. See 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 many pleas as he likes, unless they be repugnant to each other; and see Ibid. s. 137, and c. 34. C. S. G.

(1) R. & R. 358, ante, vol. 1, p. 764.

(m) Rex v. Sheen, 2 C. & P. 634 (12 E. C. L. R.), Burrough and Littledale, Js. In this case the counsel for the Crown replied ore tenus, reading the replication from the back of his brief, and the prisoner's counsel joined issue ore tenus; 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.

(n) Rex v. Clarke, 1 B. & B. 473 (5 E. C. L. R.).