The prisoner must satisfy the court first, that the What acformer indictment on which an acquittal took place be proved. quittal must was sufficient in point of law, so that he was in jeopardy upon it; secondly, that in the indictment the same. offence was charged, for the indictment is in such a form as to apply equally to several different offences (t). To prove his acquittal he may obtain a certificate thereof from the officer or his deputy having custody of the records of the court where the acquittal took place (u).

(b.) Autrefois convict.-A former conviction may be Plea of autrepleaded in bar of a subsequent indictment for the same fois convict. offence; and this, whether judgment were given or not. The same rules as in the plea of autrefois acquit generally apply; thus there is the same test as to the identity of the crime (v).

(c.) Autrefois attaint.-Formerly when a person was Plea of autreattainted, as long as the attainder was in force he was fois attaint. 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 offence as that charged in the indictment (x), so that practically the plea of autrefois attaint is a thing of the past.

(d.) Pardon. A pardon may be pleaded not only in Pardon.

(t) Parke, B., in R. v. Bird, 2 Den. 94, 98.

(u) 14 & 15 Vict. c. 99, s. 13.

(v) The reader should refer to the chapter on Summary Conviction, p. 478; where he will meet with defences similar to these pleas of autrefois acquit and autrefois convict, namely, a certificate of dismissal, or proof of having submitted to punishment, in cases of assault and battery under 24 & 25 Vict. c. 100, ss. 44, 45. So also as to dismissal or conviction under the Summary Jurisdiction Act, v. 42 & 43 Vict. c. 49, s. 27; post, p. 478.

(x) 7 & 8 Geo. 4, c. 28, s. 4.

The general issue.

Advantages of pleading "Not Guilty.

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 offence, answers vivâ 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."

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 cannot plead that the killing was done in his own defence 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 anything of a defensive. character.

(y) v. p. 473.

Issue. When the prisoner has pleaded not guilty, Issue. 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," &c. (2).

(z) For other ceremonies formerly observed, and the origin of the term "culprit," &c., v. 4 Bl. 339, or 4 St. Bl. 404, n.

Demurrer.

Judgment on demurrer.

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 demurrer :

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 may be dismissed and discharged from the said premises in the said indictment (or information) specified."

he

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 afterwards permit the defendant to plead over (a).

why seldom

Demurrers in criminal cases seldom occur in practice. Demurrers, Not only is there the risk of having final judgment resorted to. against the defendant, but the same objections may be brought forward in other and safer ways. In cases of defects in substance apparent on the face of the indictment, generally the defendant may, instead of demurring, plead not guilty, and then, if convicted, move in arrest of judgment. Thus he has a double chance of getting off, first on the facts of the case, then on the point of law. But this course cannot be taken when the defect in the indictment is cured by verdict (b).

abatement.

Formerly there was another kind of demurrer besides Demurrer in the general demurrer to which we have been referring, namely, a special demurrer, usually termed a "demurrer in abatement." This was founded on some formal defect in the indictment, whereas a general demurrer is founded on some substantial defect. But now no demurrer lies in respect of the defects specified in the 24th section of 14 & 15 Vict. c. 100 (c); and demurrers for other formal defects are practically rendered useless by sect. 25 of the same statute, which provides that every objection to an indictment for any formal defect apparent on the face thereof shall be taken by demurrer or motion to quash the indictment before the jury are sworn, and not afterwards; and the court before which such objection is taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particulars, and thereupon the trial will proceed as if no such defect had appeared.

(a) This seems to be the state of the law as settled in R. v. Faderman, 1 Den. 569; 3 C. & K. 353; though some still contend that in felonies, after judgment against the defendant, he may still plead not guilty; and a defendant has been allowed to demur and plead not guilty at the same time.

(b) v. 7 Geo. 4, c. 64, s. 21. Heymann v. R., L. R. 8 Q. B. 105. R. v. Goldsmith, L. R. 2 C. C. R. 74; 42 L. J. (M.C.) 94.

(c) v. p. 339.