that he had been convicted before a justice of the peace, on the oath of the prosecutrix, of an assault and battery upon her, and fined twenty dollars, which fine was paid by him, and that the assault and battery of which he was so convicted, was the same assaulting, beating, ravishing and carnally knowing of the said prosecutix charged in the indictment for rape. On demurrer to such plea, it was adjuged bad on the ground that the facts set forth constituted no defence to the indictment for rape, and that an acquittal upon an indictment for felony constitutes no bar to an indictment for a misdemeanor; and that an acquittal for a misdemeanor, is no bar to an indictment for a felony; that to make the plea of autrefois convict or autrefois acquit a bar, it is necessary that the crime charged in both cases be precisely the same. above case does not come within the provision of the Revised Statutes, which makes an acquittal or conviction on a former trial for an offence, a bar to an indictment for such offence in any other degree or for an attempt to commit such offence.1 The The entry of a nolle prosequi is not an acquittal, and cannot be pleaded in bar to a subsequent indictment for the same offence.2 The plea of autrefois convict depends, like the one we have just considered, on the principle that no man shall be put more than once in peril for the same offence.3 And as The form, requisites and consequences of this plea are very nearly the same as in a plea of former acquittal. Like that plea it must set forth the former record, and plead over to the felony.4 in that the identity must be shown by averments, both of the offence and of the person, so the same forms are here requisite. Also, like that plea, in order to constitute it an available defence in bar of another prosecution, the former conviction must have been had before a tribunal having competent jurisdiction.6 The statute in relation to duelling and challenges to fight in this State, provides that every offender against the provisions of that statute may plead a former conviction or acquittal for the · 1 Peo. v. Saunders, 4 Park., 196. 2 Mass., 172; 5 Rand., 669. Vol. 1, Arch. Cr. Pl., § 114, note; State v. Cooper, 1 Green. 2 Hale, 255–392, Burn, J., 'Id. Indict. 10 Humph., 431; 13 Mass., 455; 1 Engl., 187; 2 Ark., 229; R. o. Welsh, Ry. & M., 175; 12 Metc., 387; 4 Blackf., 156. same offence in another State or country, and if such plea be admitted or established, it shall be a bar to any further or other proceedings against such person for the same offence.1 The question whether a former trial and conviction for abduction are a bar to a subsequent indictment found for murder alleged to have been previously committed, cannot be raised and made a ground for discharge on habeas corpus. Such defence can only be made available, if at all, on the trial of the indictment for murder.2 Among the decisions made in this State upon this subject, the following may be mentioned: Where, on a trial for a felony, after the public prosecutor has entered upon his case and given evidence to the jury, he finds himself unprepared with the proper evidence to convict, and obtained leave of the court to withdraw a juror and thus arrest the trial, such withdrawal not being the result of improper practice on the part of the defendant, or any one acting with or for him, or of any overruling inevitable necessity, the defendant can not again be put on trial for the same offence, but the objection to a second trial in such a case does not rest upon the constitutional provision that no person shall be subject to be put twice in jeopardy for the same offence. That provision is a protection only where there has been a conviction or acquittal by the verdict of a jury, and judgment has passed thereon, and does not apply to a case where the jury have been discharged without giving any verdict, or where judgment has been arrested. The objection lies back of the Constitution, and rests upon the principles of the common law, which are essential to the protection of the accused, by securing him a speedy and impartial trial and the best means of vindicating his own innocence.3 Where a defendant, by a subsequent deposition, expressly contradicts a former one made by him, and makes apparent his corrupt motive, and negatives the probability of a mistake in the first, a conviction upon an indictment for perjury in either deposition would bar an indictment for perjury in the other.1 A conviction for misdemeanor, consisting in the commission of 12 R. S., 687, § 7. Peo. v. Rulloff, 3 Park., 126. People v. Burden, 9 Barb. 467. certain acts, e. g., administering drugs to procure an abortion, will bar a prosecution for felony based on a charge that such act was performed with an intent which would render it felonious, e. g., with intent to destroy the life of the child.' Upon an indictment for rape, a plea which alleges that the charge was brought before a magistrate who decided that there was probable cause for a charge of assault and battery only, and convicted the prisoner of that offence, constitutes no defence.2 After acquittal on an indictment for rape, the prisoners were indicted for assault and battery with intent to commit a rape, and for assault and battery; it was held that the former acquittal was a bar to the first charge in the indictment, but not to the second.3 A trial for robbery involves the question of larceny, and on acquittal is a perfect bar to a prosecution for larceny in respect to the same property. An acquittal of the defendant, on an indictment for a nuisance caused by a dam erected by him, is no bar to a subsequent indictment for a nuisance arising from the same cause years after.5 An acquittal on an indictment for forging indorsements on a note was held a bar to a subsequent indictment for uttering the note, knowing the indorsement to be forged; the evidence of the guilt in the latter case being such as would necessarily have established the guilt in the former case. But a previous acquittal, on an indictment for forging a certificate of deposit, is no bar to an indictment for attempting to obtain money by means of a forged letter enclosing the certificate to the bank.7 An acquittal by a jury, on a charge of having a single counterfeit bill in possession with an intention of passing the same, was held no bar to a prosecution against the prisoner so acquitted; and another, for having a large quantity of counterfeit money in possession.8 1 Lohman v. Peo., 1 N. Y. (1 Com.), 379; 2 Barb., 216. ' Peo. v. Saunders, 4 Park., 196. Peo. v. Ward, 15 Wend., 231; contra, Peo. v. Krummer, 4 Park., 217, • Van Houton's Case, 2 City H. Rec., 73. An acquittal upon an indictment for stealing the goods of Jenkins, the acquittal being had upon the ground that the goods belonged to Jenkinson, is no bar to a subsequent indictment for stealing the same goods as belonging to Jenkinson.1 The arresting of judgment after conviction of a felony is no bar to a second indictment for the same offence, though the second indictment be similar to the first.? In the case of an indictment for compounding an offence, the acquittal of the alleged offender is not a good plea in bar because it is at the best, but prima facie evidence of the non-commission of the offence.3 In duelling, a former conviction without the State is by statute made a bar to a prosecution iu this State.1 The other plea of autrefois attaint, although known to the common law, is said to not be available with us.5 In cases of seduction under promise of marriage, the subsequent marriage of the parties may be plead in bar of a conviction.6 In this State the statute of limitations to be available in a criminal case should be pleaded." § 40. OF THE PLEA IN ABATEMEMT. Pleas in abatement are founded either on some defect apparent on the face of the record, or upon some matter of fact extrinsic of the record which render it insufficient.8 Any defect which, in any stage of the criminal proceeding will vitiate the indictment, may be taken advantage of by plea in abatement.9 If the defendant be indicted by a wrong name, he may plead it in abatement, and if the fact be found for him, the indictment shall be abated.10 But the omission of the defendant's title, occu 'Hughes' Case, 4 City H. Rec., 132. 2 Peo. v. Casboras, 13 John., 351. Peo. v. Buckland, 13 Wend., 592; see 18 John., 352. pation, estate or degree can no longer be pleaded in abatement in this State.1 The incompetency of the grand jurors who find a bill, is a matter which may be pleaded in abatement; thus, under a statute requiring that grand jurors should be freeholders, a plea, in abatement setting forth that some of the jurors who served on the grand jury were not freeholders, was held good.2 A plea in abatement should set forth the grounds of objection specifically; and it is essential that the facts should be stated, out of which the defence arises, or a negative of that state of facts which is to be presumed from the existance of a record.1 Pleas in abatement, in criminal as well as in civil cases, must be pleaded at the proper time. By pleading not guilty, the accused waives matter in abatement.5 When a plea in abatement is found in favor of the defendant, the judgment in a case of misdemeanor is that he be not compelled to answer the indictment, but depart the court without day." And in cases of felony, the judgment is that the defendant do answer over. But if the plea is found against the defendant, the jury, or the court if the case is submitted to the court without a jury, should fix the penalty, and the judgment of the court should be in accordance with the verdict.8 On an accusation for a capital crime, however, after the indictment has been abated for a misnomer, the court will not dismiss the prisoner, but cause him to be indicted de novo by the the name disclosed in his plea, to which he can make no second objection." And if the grand jury be not discharged, another bill may be immediately preferred, whatever may be the description of the offence.10 1 2 R. S., 728, § 54. Peo. v. Jewett, 6 Wend, 386; 3 Wend., 314, contra. See authorities cited in note to § 111, vol. 1, Arch. Cr. Pl., ed. 1860. 4 * Brennan v. The Peo., 15 Ill. Rep., 511. State v. Brooks, 9 Ala., 10; State v. Newer, 7 Blackf., 307. McQuillen v. State, 8 Sme. & Mar., 587. 6 2 Hale, 238; 10 East., 88. Where see form. Arch. Cr. Pl. Guess v. State, 1 Eng.; Ark. R., 147. Cro. Car. 371; 2 Hale, 176-238; Hawk. B., 2 ch. 34, § 2; 1 Arch. Cr. Pr., III, note. |