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equivalent to a conviction, the same judgment, the same corruption of blood, and the same forfeitures always attended it, as in other cases of conviction (e). And very lately to the honour of our laws, 'it hath beep enacted by statute 12 Geo. III. c. 20. that every person who, being arraigned for felony and piracy, shall stand mute or not answer directly to the offence, shall be convicted of the same, and the same judgment and execution (with all their consequences in every respect) shall be thereupon awarded, as if the person had been convicted by verdict or confession of the crime (11). And thus much for the demesnor of a prisoner upon his arraignment, by standing mute ; which now, in all cases, amounts to a constructive consession.
II. The other incident to arraignments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain consession, the court hath nothing to do but to award judgment : but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment (F).
But there is another species of confession, which we read much of in our
ancient books, of a far more complicated kind, which is called approvement. And that is when a person, indicted of treason or [*330] felony, and arraigned for the same, doth confess the fact before plea pleaded ; and appeals or accuses others, his accomplices, in the same crime, in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offences ; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it: and if he hath no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battel, or by the country ; and if vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debilo justitae. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for, ihe condition of his pardon has failed, viz. the conviction of some other person, and therefore his conviction remains absolute.
But it is purely in the discretion of the court to permit the approved thus to appeal, or not: and, in fact, this course of admitting approvements hath been long disused: for the truth was, as sir Matthew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains than, benefit to the public by the discovery and conviction of real offenders. And therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein (g): though, since their
(8) 2 Hal. P. C. ch. 29. ? Hawk. P. C -h. 24.
(c) 9 Hawk. P. C. 331.
2 Hal. P. C. 225.
(11) Two instances have occurred since not guilty, rather than a confession. For it the passing of this statute, of persons who re. would operate more powerfully as an example, fused to plead, and who in consequence were and be more satisfactory to the minds of the condemned and executed. One was at the public, if the prisoner should suffer death after Old Bailey, for murder, in 1777; the other public manifestation of his guilt by evidence, was for burglary, at the summer assises at than that he should be ordered for execution Wells, in 1792.' It might perhaps have been only from the presumption which arises from a greater improvement of the law, if the pri. his obstinate silence. See note 8, p. 324, as soner's silence had been considered a plea of to law of New York.
discontinuance, the doctrine of approvements is become a matter of moro curiosity than use. · I shall only observe, that all the good whatever it be, than can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-steal.
ing, and larceny to the value of five shillings from shops, warehouses, [*331) stables, and coach-houses, by statutes 4 & 5 W. & M. c. 8. *6 &
7 W. III. c. 17, 10 & 1 W. III. c. 23, and 5 Ann. c. 31, which enact, that if any such offender, being out of prison, shall discover two or more persons, who have committed the like offenees, so as they may be convicted thereof; he shall in case of burglary or house-breaking receive a reward of 401. and in general be entitled to a pardon of all capital offences, excepting only murder and treason; and of them also in the case of coining (h). And if any such person, having feloniously stolen any lead, iron, or other metal, shall discover and convict two offenders of having illegally bought or received the same, he shall by virtue of statute 29 Geo. il. c. 30. be pardoned for all such felonies committed before such discovery (12). It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows; upon an implied confidence, which the judges of gaol-delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree (i) (13)
(h) The pardon for discovering offences against (i) The king v. Rudd ; Mich. 16 Geo. III. on a the coinage act of 15 Geo. Il. c. 28. extends only case reserved from the Old Bailey, Oct. 1775
to all such offences.
(12) These acts are now repealed; see notes ers are tried, and in which he has been con17 and 18, p. 294, 295, ante.
cerned in concert with them. Upon failure (13) In the case of Mrs. Rudd, in which on his part with this condition, he forseits all this subject is clearly and ahly explained by claim to protection. And upon a trial some lord Mansfield, and again by Mr. J. Aston, in years ago at York, before Mr. J. Buller, the acdelivering the opinion of all the judges, (Cowp. complice, who was admitted a witness, denied 331.) it is laid down that no authority is given in his evidence all that he had before confess. to a justice of peace to pardon an offender, ed, upon which the prisoner was acquitted; and to tell him he shall be a witness at all but the judge ordered an indictment to be events against others. But where the evi- preferred against this accomplice for the same dence appears insufficient to convict two or crime, and upon his previous confession, and more without the testimony of one of them, other circumstances, he was convicted and exthe magistrate may encourage a hope that he, ecuted. And if the jury were satisfied with who will behave fairly and disclose the whole his guilt, there can be no question with regard truth, and bring the others to justice, shall both to the law and justice of the case. himself escape punishment. But this discre- The learned commentator says, that the actionary power exercised by the justices of complice thus admitted a witness, shall not peace is founded in practice only, and cannot afterwards be prosecuted for that or any other control the authority of the court of gaol-deli. previous offence of the same degree. Mrs. very, and exempt at all events the accomplice Rudd's case does not warrant the extent ! from being prosecuted. A motion is always that position, for the decision of that case, and made to the judge for leave to admit an ac. what is advanced by Mr. J. Aston (Cowp. comp.ice to be a witness, and unless he should 341.), and as the editor conceives the reason see some particular reason for a contrary con- and principles of this doctrine, will not extend duct, he wil. prefer the one to whom this en- the claim of the witness to percy beyond couragement has been given by the justice of those offences in which he has been connected peace. This admission to be a witness amounts with the prisoners, and concerning which he has to a promise of a recommendation to mercy, previously undergone an examination. And tapon condition that the accomplice make a with regard in these crimes he may be crossfull and fair disclosure of all the circumstan- examined by the counsel for the prisoner, but ces of the crime, for which the other prison- of course he may refuse to criminate himsell
OF PLEA, AND ISSUE (1).
We are now to consider the plea of the prisoner, or defensive matter alleged by him on his arraignment, if he does not confess or stand' mute.
This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement ; 4. A special plea in bar ; or, 5.
5. The general
ral issue. Formerly there was another plea, now ahrogated, that of sanctuary ; which is however necessary to be lightly touched upon, as it may give some light to many parts of our ancient law: it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First then. it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church, or church-yard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence; and thereupon took the oath in that case provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return of other charges, against which that prosecu. another, both may be convicted, if the jury tion affords him no protection. The evidence think the accomplice deserving of credit. Rex and information of an accomplice taken ac- 1. Dawber and others, 2 Stark. N. P. C. 34 ; cording to the statutes 1 & 2 Ph. & M. c. 13. Car. Cr. L. 67, 2d ed. And see Rex v. Dawa and 2 and 3 Ph. & M. c. 10. may be read ber, 3 Stark. 34-6, n, where it is said, that if against a prisoner, upon proof of the death of the testimony of an accomplice be contirmed the accomplice; but it can have no effect, un. so far as it relates to one prisoner, but not as less it is corroborated in the same manner as to another, the one may be convicted on the qis living testimony. Westbeer's case, Leach, testimony of the accomplice, if the jury deer 14. See further, as to the evidence of an ac- him worthy of credit. An accomplice does complice, 1 Chiuy's Crim. L. 603. and Stark. not require confirmation as to the person on Evid. part IV. 17.
charged, provided he is confirmed in the parti It has now been solemnly decided that an culars of his story. Rex v. Birkett and Braaccomplice admitted as king's evidence, and dy, R. and R. C. C. 251. And the corrobora. “performing the condition on wihch he is ad. tion of his evidence need not be on every ma mitted as a witness, is not entitled, as matter lerial point, but he must be so confirmed as to of right, to be exempt from prosecution for convince the jury that his statement is correct other offences with which he is charged, but and true. Rex v, Barnard, 1 C. and P. 88. A that it will be matter in the discretion of the person indicted for a misdemeanor maybe legal. judge whether he will recommend him for a ly convicted upon the uncorroborated evidence pardon or not. Rex v. Lee, R. and R. C. C. of an accomplice. Rex v. Jones, 2 Camp. 361; Rex v. Brunton, id. 451. Even the equi- 132. So may a person indicted for a capita. table claim of an accomplice to a pardon, on offence. Jordaine v. Lashbrook, 7 T. R. 609. condition of his making a full and fair conses. But the testimony of accomplices alone is sel. sion, does not extend to prosecutions for other dom of sufficient weight with a jury to convict offences in which he was not concerned with the the offenders ; the temptation to commit perprisoner: with respect to such offences, there. jury being so great, where the witness by acfore, he is not bound to answer on cross-exami- cusing another may escape himself. The nation. Lee's. Duce's, and West's cases, 1 practice, therefore, is to advise the jury to rePhil. Ev. 37. But the judges will not, in ge- gard the evidence of an accomplice, only so neral, admit an accomplice as king's evidence, far as he may be confirmed, in some part of although applied to for that purpose by the his testimony, by unimpeachable testimony *ounsel for the prosecution, if it appear that Phil. Ev. 34, 3d ed. And see id. c. 4, 92, and ne is charged with any other felony than that the several authorities there cited and consi on the tria of which he is to be a witness. 2 dered. 1. and P. 411; Car. Cr. L. 62. Where an (1) As to pleas in general, in original pro accomplice is confirmed in his evidence ceedings, see i Chit. C. L. 2 ed. 432 to 475 gainst one prisoner, but not with respect to
without leave from the king; he by this means saved his life, if he [*333] observed the conditions of the oath, by going with a cross in his
hand, and with all convenient speed, to the port assigned, and embarking. For if, during this forty days' privilege of sanctuary, or in his road to the sea-side, he was apprehended and arraigned in any court, for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out against his will (a). But by this abjuration his blood was attainted, and he forfeited all his goods and chattels (6). The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII. c. 19. and 32 Hen. VIII. Ć. 12.
And now by the statute 21 Jac. I. c. 28. all privilege of sanctuary, and abjuration consequent thereupon, is utterly taken away and abolished.
Formerly also the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea ; which was the name also given to that of sanctuary (c). But, as the prisoner upon a trial has a chance to be acquitted, and totally discharged; and, if convicted of a clergyable felony, is entitled equally to his clergy after as before conviction; this course is extremely disadvantageous; and therefore the benefit of clergy is now very rarely pleaded ; but, if found requisite, is prayed by the convict before judgment is passed upon him (2).
I proceed, therefore, to the five species of pleas before mentioned.
he jurisdiction, is where an indictment is taken before a court that hath no cognizance of the offence; as if a man be indicted Tor rape
at the sheriff's tourn, or for treason at the quarter sessions : in these, or similar
without answering at all to the crime alleged (d) (3).
II. A demurrer to the indictment. This is incident to criminal [*334] cases, as well as civil, when the fact alleged is allowed to be
true, but the prisoner joins issue upon some point of Taw in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man were indicted for feloniously stealing a greyhound, which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it : in this case the party indicted may demur to the indictment; denying it to be selony, though he confesses the act of taking it. Some have held (e), that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others (f ), who hold, that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him (4). Which appears the more reasonable, because it is clear, that if the prisoner freely discovers tho
may except to the
(a) Mirr. c. 1. 13.2 Hawk. P. C. 335.
(d) Ibid. 256.
(2) Benefit of clergy is abolished in all 352; or where the objection proves, that no cases of felony by 7 and 8 Geo. IV. c. 28. court in England can try the indictment, 6 0 6.
East, 583; and an objection to the jurisdiction, (3) An affidavit of the truth of the plea must apparent on the face of the proceedings, may be made.
be taken advantage of on deinurrer.
IT In some cases the defendant may take ad. R. 316. vantage of the want of jurisdiction, under the (4) This rule holds good in indictments for plea of not guilty; as where a statute directs felonies, but not for misdemeanors. 8 East, the offence shall be tried only within a certain 112. boundary, or by certain magistrates | East
fact in court, and refers it to the opinion of the court, whether it be felony or no, and upon the fact thus shewn it appears to be felony ; the court will not record the confession, but admit him afterwards to plead not guilty (g). And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading ; and though a man by mispleading may in some cases lose his property yet the law will not suffer him by such niceties to lose his life. How ever, upon this doubt, demurrers to indictments are seldom used, since the same advantages may be taken upon a plea of not guilty ; or afterwards in arrest of judgment, when the verdict has established the fact.
III. A plea in abatement (5) is principally for a misnomer, a wrong name, or false addition to the prisoner. "As, if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John ; and that he is a gentleman, and not an esquire. And, if either fact is found by a jury, then the indict. [*335) ment shall be abated, as writs or declarations may be in civil actions; of which we spoke at large in the preceding book (k) (6). But, in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas; because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he, who takes advantage of a flaw, must at the same time shew how it may be amended. Let us therefore next consider a more substantial kind of plea, viz.
IV. Special pleas in bar ; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. - These are of four kinds : a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pieas, which may be pleaded in bar of an appeal (i); but these are applicable to both appeals and indictments.
1. First, the plea of autrefoits acquit (7), or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence (j), he may plead such acquittal in bar of any subsequent accusation for the same crime (8). There($) 2 Hal. P. C. 225.
(O) 2 Hawk. P. C. ch. 23. or (h) Seo Book III. pago 302.
(j) 3 Mod. 194. ... (5) An affidavit of the truth of the plea must 3 B. and C. 502. And if it is irregularly pleadbe filed, 4 & 5 Ann. c. 16. s. II.
ed, and the acquittal which it sels forth an See also 2 R. S. 731, 971,
pears to have been obtained by collusion, the (6) These defects are cured in England by court will strike the plea off the file. Rex v. 7 Geo. IV. c. 64, Ś and in New York, by Taylor, 5 D. and R. 521; 3 B. and C. 612. 2 R. S. 728, 6 O 19;
A plea of autrefois acquit cannot be pleaded (7) As to this plea in general, see 1 Chit. unless the facts charged in the second indici. C. L. 2 ed. 452 to 461.2 Hale, 240 lo 250. inent, would, if true, have sustained the first. Hawk. b. 2. c. 35. Com. Dig. Indictment, L. Rex v. Vandercomb, 2 East, P. C. 519. If, in Burn J. Indictment, XI. 4 to 45. and see the a plea of autrefoits acquit, the prisoner were woles on the precedents of that plea, in 4 Chit. to insist on two distinct reco ds of acquitta.,
his plea would be bad for duplicity. But sem (8' But such a plea must be strictly regular ble, that if he insisted upon the wrong, the both in form and substance; for, in cases of court would, in a capital case, take care that misdemeanor, if it is held had on demurrer, he did not suffer by it. Rer v. Sheen, 2 C knal judgment may be entered up against the and P. 635. And if the prisoner could have defriadant. Rex v. Taylor, 5 D. and R. 422; been logally convicted on the first indictment
Cr. L. 2 ed.