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 prin ciples 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 1 2 R. S., 687, § 7. 2 Peo. v. Rulloff, 3 Park., 126. Klock v. Peo., 2 Park., 676. 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." 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 'Lohman v. Peo., 1 N. Y. (1 Com.), 379; 2 Barb., 216. ' Peo. v. Saunders, 4 Park., 196. Peo. v. Peo. v. Allen, 1 Park., 445. 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.2 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. The other plea of autrefois attaint, although known to the common law, is said to not be available with us." In cases of seduction under promise of marriage, the subsequent marriage of the parties may be plead in bar of a conviction." In this State the statute of limitations to be available in a criminal case should be pleaded.7 § 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. Peo. v. Casboras, 13 John., 351. Peo. v. Buckland, 13 Wend., 592; see 18 John., 352. 2 R. S., 687, § 7. Bish. Cr. L., I., § 898. 2 R. S., 664, § 26; Laws 1848, ch. 111. ' Peo. v. Roe, 5 Park., 231. • 1 Bish. Cr. Pro., 416. 2 Hale P. C., 236. 10 2 Hale P. C., 238; 1 Metc., 151; 5 Porter, 236. 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.9 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. 'Brennan v. The Peo., 15 Ill. Rep., 511. 'State v. Brooks, 9 Ala., 10; State v. Newer, 7 Blackf., 307. 'Cro. Car. 371; 2 Hale, 176–238; Hawk. B., 2 ch. 34, § 2; 1 Arch. Cr. Pr., III, note. Idem; Cro. C. C., 21; Dick. Sees., 167. If it be pleaded by one of the several defendants and allowed, it will only quash the indictment as to him, without affecting it as to those who are correctly indicted.1 This plea should be verified by affidavit or some other evidence.2 A plea in abatement is a dilatory plea, and should be pleaded with exact strictness.3 It is the usual practice where a plea of misnomer is put in, to re-indict the defendant by the new name, without pushing the old bill further.4 The prosecutor may, however, if he think fit, deny the plea, or reply that the defendant is known as well by one christian or surname as another.5 It is not a good replication that the defendant is the same person mentioned in the indictment." § 41. PLEA OF GUILTY. The effect of this plea is merely to bind the defendant to the fact of his having done what is legally charged against him in the indictment, and if the indictment. is insufficient and contains no valid charge of an offence, the plea of guilty, confesses none." The plea of guilty is a confession of the offence which subjects the defendant to precisely the same punishment as if he were tried and found guilty by verdict. But, as defendants often imagine that by pleading guilty they are likely to receive some favor from the court in the sentence that will be passed upon them, the judge very frequently undeceives them in that respect, and apprizes them that their pleading guilty will make no alteration whatever in their punishment. 8 The plea of guilty is the highest kind of conviction of which the case admits, and may be received after the plea of not guilty 1 9 Rep. Temp. Hardw., 303; 2 Hale, 177; Bac. Abr., tit.; Indict. G.; 2 Williams, J., Misnomer and Addition; 1 Arch. Cr. Pr., § 111; note. O'Connell v. Reg., 11 Cl. & Fin., 159; 9 Jurist, 25. ♦ Whar. Cr. L., 3d ed., 246; 2 Hale, 176–238; Burn. Indict., 9; Dick. Sess., 167. ' 2 Hale, 237, 238; 2 Leach, 476; Cro. C. C., 21. * 2 Hale, 238; 2 Leach, 478; 3 Inst.,. 27; Starkie, 296. 1 Bish. Cr. Pro., 464; Fletcher v. State, 7 Eng., 169. Arch. Cr. Pr., vol. 1, § 110. 9 2 Hale, 225. |