Plea of Autrefoits Convict.

This is a plea that the defendant was indicted upon a former occasion for the same offence, and convicted.4 Bl. C. 336.

This plea is in general open to the same remarks as that of autrefoits acquit.-1 Chit. Cr. Law, 462. See 2 Hale, P. C. 251; 2 Hawk. c. 36, ss. 10 to 17.

(As to the plea of autrefoits attaint it seems now to be rendered useless by the effect of 7 & 8 Geo. IV. c. 28, s, 4.)

Plea of Pardon.

If the defendant has received a pardon for the offence charged, he may plead it in bar.-4 Bl. C. 337.

And he may plead it either upon arraignment, or after verdict, in arrest of judgment, or after judgment, in bar of execution.-Ibid. 402.

But he is bound to plead it at the first opportunity; for if he has received a pardon before arraignment, and instead of pleading it, pleads not guilty, he cannot afterwards avail himself of it in arrest of judgment.-4 Bl. C. 402.

A pardon regularly should be under the great seal.— 1 Chitty, Cr. Law, 468. But see 7 & 8 Geo. 4, c. 28, s. 13, post, p. 335.

If a pardon under the great seal be pleaded, the letters patent must be set out with a profert.-1 Chitty, Cr. Law, 468.

But if the party be unable immediately to produce it the court will in their discretion indulge him with further time in order to procure it.-Ibid.

If this plea be found against the defendant in case of felony, there will be judgment that he answer over, and in case of misdemeanor the court may proceed to pass sentence as upon a conviction.-1 Chit, Cr. Law, 470.

By 5 & 6 Will. 3, c. 13, when a pardon is pleaded by any one for felony the justices may at their discretion remand him to prison till he enter into recognizance with two sureties for his good behaviour for any time not ex

ceeding seven years; but this power is not usually exercised, and in all cases. if such plea be found for the prisoner, the course is to discharge him.-Ibid.

A pardon by public act of parliament, need not be pleaded, but the court must notice it ex officio.-Fost. 43, 4 Bl. C. 402.

Plea of Not Guilty.

This is otherwise called the general issue.

This is pleaded (in most cases) by the prisoner vivâ voce at the bar, in these words "not guilty."

But in cases where the defendant is allowed to appear by attorney, (vide sup. p. 279,) it is not pleaded vivâ voce, but engrossed and filed with the proper officer.-Arch. 87.

By 7 & 8 Geo. 4, c. 28, s. 1, if any person, not having privilege of peerage, being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto, a plea of "not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial. And the court shall in the usual manner order a jury for the trial of such person accordingly.

And by sect. 2, if any person being arraigned upon or charged with any indictment or information for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information, in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person. And the plea so entered shall have the same force and effect as if such person had actually pleaded the same.

In the case of a peer, the provision of the first section of this statute does not apply; and therefore (as before the statute) after the plea of "not guilty" by a peer, he should be asked how he will be tried.-See 4 Bl. C. 341.

This is the only plea on which the prisoner can receive a final judgment of death; for in all cases of felony, if a special plea in bar, or any other plea, is found against him, he

is allowed to plead over "not guilty" to the felony.--4 Bl. C. 338.

On pleading this plea the prisoner, if in irons, is entitled to have them removed in order that he may suffer no unnecessary pain or restraint on his trial.-1 Chit. Cr. L. 471.

The general issue makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offence as stated in the indictment or information. On the other hand, the defendant may give in evidence under this plea not only every thing which negatives the allegation in the indictment, but also all matter of excuse and justification.Arch. 87.

CHAPTER XXVI.

OF TRIAL AND CONVICTION.

Trial is the decision of the matter of fact brought into issue upon the plea of the defendant.

1. Trial by Peers.

This is the method of trial used in the court of parliament, or of the lord high steward, when a peer is indicted for felony. (For this, vide sup. Chap. XVII.) The course of proceeding upon it, is similar to that on trial by jury, except that there can be no special verdict, and that the peers need not all agree in their verdict, the decision of the greater number (consisting of twelve at least) being conclusive.-4 Bl. C. 348.

2. Trial by Jury.

This is also called trial by the country.—Ibid. 349. When the defendant upon an indictment or information has pleaded not guilty, the trial is by twelve jurors of the county where the fact is alleged in the indictment or information to have been committed, called a petit (or petty) jury, by way of distinction from the grand jury.-(As to which, vide sup. p. 253.)

By 6 Geo. 4, c. 50, s. 1, every man between the ages of twenty-one and sixty, residing in any county in England, who shall have in his own name, or in trust for him, within the same county, 107. by the year above reprises, in lands or tenements, whether of freehold, copyhold, or customary tenure, or of ancient demesne, or in rents issuing out of such lands, &c., or in such lands, &c., and rents taken together, in fee simple, fee tail, or for the life of himself or another, or who shall have within the same county 201

by the year above reprises, in lands, &c. held by lease for twenty-one years or longer, or for any term of years determinable on any life or lives, or who, being a householder, shall be rated to the poor rate or to the inhabited house duty, in the county of Middlesex on a value of 30%., or in any other county 20., or who shall occupy a house containing fifteen windows, shall be qualified and liable to serve on juries, for the trial of all issues joined in any of the king's courts of record at Westminster, and in the superior courts, both civil and criminal, of the counties. palatine, and in all courts of assize, nisi prius, oyer and terminer, and gaol delivery; such issues being respectively triable in the county, in which every man so qualified respectively shall reside; and on grand juries in courts of sessions of the peace, and on petty juries for the trial of all issues joined therein and triable in the county, &c. in which every man so qualified respectively shall reside.

By sect. 2, peers, judges of the king's courts of record at Westminster, clergymen in holy orders, priests of the Roman Catholic faith having taken the oaths, &c., persons teaching or preaching in congregations of Protestant dissenters duly registered, &c., serjeants and barristers at law actually practising, members of the society of doctors of law, and advocates of the civil law, actually practising, attornies, solicitors, and proctors, duly admitted, actually practising and having duly taken out their certificates, officers of courts actually exercising their offices, coroners, gaolers, and keepers of houses of correction, members and licentiates of the college of physicians actually practising, surgeons being members of the colleges of London, Edinburgh, or Dublin, and actually practising, and certificated apothecaries actually practising, officers in the navy or army on full pay, licensed pilots, household servants of the king, officers of customs and excise, sheriffs' officers, high constables, and parish clerks, are exempt from serving.

And by sect 3, no man not being a natural born subject of the king (except on trials of aliens, where a jury de medietate is demanded, (vide post, 301,)) and no man attainted of treason or felony, or convicted of any infamous