AUTREFOIS ACQUIT (Fr. formerly ac quitted). A plea made by a defendant in dicted for a crime or misdemeanor, that he has formerly been tried and acquitted of the same offence.
The constitution of the United States, Amend. art 5, provides that no person shall be subject for the same offence to be put twice in jeopardy of life or limb. This is simply a re-enactment of the common-law. The same provision is to be found in the con• stitution of almost all if not of every state, and if not in the constitution the same prin ciples are probably declared by legislative act; so that they must be regarded as funds, mental doctrines in every state ; 2 Kent 12. See U. S. v. Perez, 9 Wheat. (U. S.) 579, 6 L. Ed. 165; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204; Com. v. Bowden, 9 Mass, 494; People v. 18 Johns. (N. Y.) 187, 9 Am. Dec. 203; State v. Hall, 9 N. J. L. 256. See, however, Com. v. Cook, 6 S. & R. (Pa.) 577, 9 Am. Dec. 465; State v. Gar rigues, 2 N. C. 241; Whart. Crim. Pl. § 490. This plea is founded upon the maxim, nemo debet bis vefflcuri pro eadem cause; Broom, Leg. Max. 265.
The court, however, must have been com petent, having jurisdiction and the proceed ings regular ; McNeil v. State, 29 Tex. App. 48, 14 S. W. 393; Blyew v. Corn., 91 Ky. 200, 15 S. W. 356 ; but see Powell v. State, 89 Ala. 172, 8 South. 109.
To be a bar, the acquittal must have been after a trial ; Marston v. Jenness, 11 N. H. 156; State v. Odell, 4 Blackf. (Ind.) 156; State v. Tindal, 5 Harr. (Del.) 488; Hassell v. Nutt, 14 Tex. 260; and by verdict of a jury on a valid indictment; 4 Bla. Corn. 335; People v. Barrett, 1 Johns. (N. Y.) 66; Heikes v. Com., 26 Pa. 513; State v. Wilson, 39 Mo. App. 187. In Pennsylvania and some other states, the discharge of a jury, even in a capital case, before verdict, except in case of absolute necessity, will support the plea; Com. v. Clue, 3 Rawle (Pa.) 498; State v. McGimsey, 80 N. C. 377, 30 Am. Rep. 90; but the prisoner's consent to the discharge of a previous jury is a sufficient answer ; Peif fer v. Coro., 15 Pa. 468, 53 Am. Dec. 606. In the United States courts and in some states, the separation of the jury when it takes place in the exercise of a sound discretion is no bar to a second trial; Whart. Cr. P1. § 499; Clark, Cr. Law 373; Simmons v. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L Ed. 968; as where the jury is discharged because of the sickness of a juror; People v. Ross, 85 Cal. 383, 24 Pac. 789; State v. Hazledahl, 2 N. D. 521, 52 N. W. 315, 16 L. R. A. 150; see Stocks v. State, 91 Ga. 831, 18 S. E. 847; or because they failed to agree ; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429 ; State v. Whitson, 111 N. C. 695, 16 S. E. 332.
There must be an acquittal of the offence charged in law and in fact; Com. v. Myers, 1 Va. Cas. 188; Wortham v. Corm, 5.1tan11. (Va.) 669; Com. v. Goddard, 13 Mass. 457; McCreary v. Com., 29 Pa. 323 ; People V. March, 6 Cal. 543 ; Winn v. State, 82 Wis. 571, 52 N. W. 775; the plea will be bad if the offences charged in the two indictments be perfectly distinct in point of law, however clearly they may be connected in fact ; Bur ton v. U. S., 202 U. S. 345, 26 Sup. Ct. 688,
50 L. Ed. 1057, 6 Ann. Cas. 362, citing Com. v. Roby, 12 Pick. (Mass.) 502; but an ac quittal is conclusive; Slaughter v. State, 6 Humphr. (Tenn.) 410; Corn. v. Cummings, 3 Cush. (Mass.) 212, 50 Am. Dec. 732; State v. Brown, 16 Conn. 54; State v. Jones, 7 Ga. 422; State v. Johnson, 8 Blackf. (Ind.) 533; State v. Wright, 3 Brev. (S. C.) 421; State v. Spear, 6 Mo. 644; Dillard's Adm'r v. Moore, 7 Ark. 169 ; State v. De Hart, 7 N. J. L. 172; State v. Anderson, 3 Smedes & M. (Miss.) 751; State v. Burris, 3 Tex. 118 ; Lawyer v. Smith, 1 Denio (N. 1) 207. If a none prose qui is entered without the prisoner's consent after issue is joined and the jury sworn, it is a bar to a subsequent indictment for the same offence; Franklin v. State, 85 Ga. 570, 11 S. E. 876; but the jeopardy does not begin until the jury is sworn, prior to that a not. pros. may be entered without prejudice; State v. Paterno, 43 L. Ann. 514, 9 South. 442; a not. pros. of two of three indictments is no bar to a prosecution under the third; O'Brien v. State, 91 Ala. 25, 8 South. 560. In Missouri the conviction of murder in the sec ond degree, under an indictment for murder in the first degree, constitutes no bar to trial and conviction for murder in the first degree, upon a new trial, when the first verdict has been set aside; State v. Anderson, 89 Mo. 312, 1 S. W. 135.
Proceedings by state tribunals are no bar to court-martial instituted by the military authorities of the United States ; 3 Opin. Atty.-Genl. 750; Stiener's Case, 6 id. 413 ; but a judgment of conviction by a military court, established by in an insurgent state, is a bar to a subsequent prosecution by a state court for the same offence; Coleman v. Tennessee, 97 U. S. 509, 24 L. Ed. 1118.
See COURTS-MARTIAL.
The plea must set out the former record, and show the identity • of the offence and of the person by proper averments; Hawk. Pl. Cr. b. 2, c. 36; Atkins v. State, 16 Ark. 568 ; Wilson v. State, 24 Conn. 57.
The true test of whether a plea of autre fois acquit or autrefois convict is a sufficient bar in any particular case is whether the evidence necessary to support the second in dictment would have been sufficient to pro cure a legal conviction upon the first; 1 Bish. Cr. L. 1012; 3 B. & C. 502 ; Com. v. Roby, 12 Pick. (Mass.) 504; State v. Wil liams, 45 La. Ann. 936, 12 South. 932. Thus, if a prisoner indicted for burglariously breaking and entering a house and stealing therein certain goods of A is acquitted, he cannot plead this acquittal in bar of a sub sequent indictment for burglariously break ing and entering the same house and steal ing other goods of B; 2 Leach 718, 719; Alexander v. State, 21 Tex. App. 406, 17 S. W. 139, 57 Am. Rep. 617.
The plea of autrefois acquit involves ques tions of mixed law and fact, and is properly' referred to the jury when not demurrable on its face; State v. Williams, 45 La. Ann. 936, 12 South. 932.
The plea in the celebrated case of Regina v. Bird, 5 Cox Cr. Cas. 12, Tempi. & M. 438, 2 Den. Cr. Cas. 224, is of peculiar value as a precedent.
See JEOPARDY.
•