finished. State v. Brooks, 3 Humph. 70; State v. Mahala, 10 Yerg. 532; State v. Battle, 7 Ala. 259; In re Robert Spier, 1 Dev. & Bat. Law, 491; Wright v. State, 5 Ind. 290. "Nor if the jury are discharged before verdict, with the consent of the accused, expressed or implied. State v. Slack, 6 Ala. 676. "Nor if the verdict is set aside on motion of the accused, or on writ of error based on his behalf. State v. Redman, 17 Iowa, 329. "Nor in case the judgment is arrested on his motion. People v. Casborus, 13 Johns. 351."(1) To this may be added, as perhaps not included, nor if the jury is discharged, after considering the cause for such a length of time as to leave no reasonable expectation that they will be able to agree upon a verdict.(2) A former acquittal or conviction will not be a defense, if it was procured by the fraud of the defendant.(3) If the former indictment was so defective that judgment might have been reversed, yet, if the judgment has been executed and performed, the plea of former conviction will prevail. (4) When one act constitutes two distinct offenses, a conviction of one offense is not a bar to a subsequent indictment for the other offense. As, where the same acts constitute the offense of keeping a tippling-shop, and the distinct offense of being a common, seller of intoxicating liquors.(5) So, it has been held a conviction of being a common seller of intoxicating liquors is not a bar to an indictment for a single illegal sale during the time embraced in the first indictment(6)-though the contrary has been held.(7) (1) Clifford, J., in Coleman v. Tennessee, 97 U. S. 509–521. (2) Dobbins v. State, 14 Ohio St. 493. (3) Commonwealth v. Alderman, 4 Mass. 477; State v. Little, 1 N. H. 257; State v. Reed, 26 Conn. 202; Commonwealth v. Jackson, 2 Va. Cases, 501; State v. Colvin, 11 Humph. 599; State v. Epps, 4 Sneed, 552; State v. Green, 16 Iowa. 239; State v. Cole, 48 Mo. 70. (4) Commonwealth v. Loud. 3 Metc. (Mass.) 328. (5) State v. Inness, 53 Maine, 536; Commonwealth v. McShane, 110 Mass. 502. (6) State v. Maher, 35 Maine, 225. (7) State v. Nutt, 28 Ver. 698. Where one, at the same time, by the same act, passed several forged checks, or stole several articles, only a single offense was committed; and a conviction, upon a charge of passing one of the checks, or stealing one of the arti cles, is a conviction of that offense, and is a bar to any other indictment for passing or stealing the rest.(1) The true test is whether the evidence necessary to support the second indictment would have been sufficient to prove a legal conviction in the first.(2) A defendant may be found guilty either of the whole of the offense as charged in the indictment, or of any less offense included therein. Hence, if found guilty of the whole offense charged, he can not be subsequently convicted of any less offense charged therein. And, if he is indicted for an offense, and convicted, and should thereafter be indicted for a greater offense, including the one for which he has been convicted, he could not be found guilty, without being convicted again of the same offense of which he has already been convicted. But this is limited by another rule. It was the rule that one could not, under an indictment for felony, be convicted of a misdemeanor; and if, upon trial for a misdemeanor, the evidence should prove a felony including the misdemeanor, the practice was to discharge the defendant, and have him indicted for the felony. And, though this rule and this practice are now generally abrogated in the United States, it is still generally held that a defendant indicted for a felony can not plead in bar a previous conviction, under an indictment or charge of misdemeanor, for the same transaction. It is held that a conviction for simple assault and battery is not a bar to an indictment for assault with intent to kill and murder,(3) an assault with a deadly weapon, (4) an assault with intent (1) State v. Egglescht, 41 Iowa, 574; Ben. v. State, 22 Ala. 91; Fisher v. Commonwealth, 1 Bush, 211; Clem v. State, 42 Ind. 420; Black v. State, 38 Ga. 187; Lorton v. State, 7 Mo. 55. (2) Price v. State, 19 Ohio, 423. (3) State v. Hattabaugh, Supreme Court of Indiana, May Term 1879, Cent. Law J., August 1, 1879. (4) Severin v. People, 37 Ill. 414. to do great bodily injury,(1) or to an indictment for murder(2) or manslaughter.(3) In State v. Hattabaugh, the court say: A conviction or acquittal of a simple assault and battery can not be pleaded in bar to a subsequent prosecution for the same assault and battery with intent to commit a felony; but it can be put in evidence, so that, if the jury should fail to find the felonious intent, they can not convict again of the simple assault and battery.] (c) Autrefois attaint.-Formerly when a person was attainted, as long as the attainder was in force he was considered legally dead. Therefore a plea of an already existing attainder was a bar to a subsequent indictment for the same or for any other felony, on the ground that such second prosecution of a person already dead, and whose property had been forfeited, would be useless. But now an attainder is no bar unless the attainder be for the same offense as that charged in the indictment, (r) so that practically the plea of autrefois attaint is a thing of the past. (d.) Pardon.-A pardon may be pleaded not only in bar to the indictment (as in the case of the three pleas just noticed), but also after verdict in arrest of judgment; or, after judgment, in bar of execution. But it must be pleaded as soon as the defendant has an opportunity of doing so; otherwise he will be considered to have waived the benefit of it. The subject will find a more convenient place hereafter.(y) iv. The general issue of not guilty.-When the prisoner, on being charged with the offense, answers riva voce, at the bar, "not guilty," he is said to plead the general issue. The consequence is, that he is to be tried by a jury, or, as it is frequently stated, he puts himself upon the country for trial. The plea is recorded by the proper officer of the court, either by writing the words "po. se." (posuit se super patriam), or at the central criminal court by the word "puts." (x) 7 and 8 Geo. 4, c. 28, 8 4. (1) State v. Foster, 33 Iowa, 525. (y) v. p. 416. (2) Commonwealth v. Roby, 12 Pick. 496. This is much the most common and advantageous course for the prisoner to take; unless, indeed, he pleads guilty, and thereby the court is induced to take a more lenient view of his case. Pleading the general issue does not necessarily imply that the prisoner contends that he did not do the actual deed in question, inasmuch as it does not prevent him from urging matter in excuse or justification. More, this is practically the only way in which he can urge matter in excuse or justification. Thus, on an indictment for murder, a man can not plead that the killing was done in his own defense against a burglar; he must plead the general issue-not guilty-and give the special matter in evidence. The pleading of the general issue lays upon the prosecutor the task of proving every material fact alleged in the indictment or information; while the accused may give in evidence any thing of a defensive character. Issue. When the prisoner has pleaded not guilty, the record is made up, both parties being brought to an issue, and both putting themselves upon their trial by jury. The general issue appears on the record: "And the said John Styles forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, saith that he is not guilty thereof." And on the part of the prosecution the similiter is then added: "And John Brown (the clerk of the arraigns, or clerk of the peace) who prosecutes for our said lady the queen in this behalf, doth the like. Therefore let a jury come," etc.(z) (z) For other ceremonies formerly observed, and the origin of the term "culprit," etc., v. 4 Bl. 339, or 4 St. Bl. 406, n. CHAPTER XII. DEMURRER. A DEMURRER is an objection on the part of the defendant who admits the facts alleged in the indictment to be true, but insists that they do not in point of law amount to the crime with which he is charged. Thus, if a person is indicted for feloniously stealing goods which are not the subject of larceny at common law or by statute, he may demur to the indictment, denying it to be a felony. It is for the court, on hearing the arguments, to decide whether the objection be good. The following is the form of a de murrer : "And the said John Styles in his own proper person cometh into court here, and, having heard the said indictment (or information) read, saith, that the said indictment (or information) and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that he the said J. S. is not bound by the law of the land to answer the same; and this he is ready to verify: wherefore, for want of a sufficient indictment (or information) in this behalf, the said J. S. prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment (or information) specified." If on the demurrer judgment is given for the defendant, it is to the effect that he be discharged, provided that the objection be a substantial one; that the indictment be quashed, if it is a merely formal one. If judgment is given against the defendant, in felonies the judgment is final; in misdemeanors it is final, unless the court should afterward permit the defendant to plead over. (a) (a) This seems to be the state of the law as settled in R. v. Fader |