An accessory may be arraigned, but it seems clear, that he cannot be tried before the principal has appeared, unless at his own request (i); and even then, if he be convicted, judgment should be respited until the conviction, &c. of the principal.

Where the attainder of the principal was prevented by his death, by his standing mute, challenging above 35 jurors peremptorily, where he was admitted to the benefit of clergy or pardoned, the accessory could not be arraigned (k); and yet in these cases, the reason why the accessory shall not be tried before his principal, viz. least the conviction of the accessory should be contradicted by an acquittal of the principal, seems to fail; for in such cases, the principal could not afterwards be acquitted, and therefore the absurdity could not arise.

But by the stat. 1 Ann. sess. 2. c. 9. s. 1. if the principal be convicted, stand mute, challenge above 20 jurors peremptorily, the accessory shall be proceeded against as upon an attainder of the principal, although the principal felon be admitted to the benefit of clergy, be pardoned, or otherwise delivered before his attainder.

And at common law, it seems, that the death or pardon of the principal, after his attainder, would be of no avail to the accessory.

If there be several principals, and the defendant be indicted as accessory to one only, it is clear (7), that he may be tried as accessory to him, though the others have not appeared.

But if he be indicted as accessory to several, and one only has appeared, it has been questioned (m), whether he

(i) 2-Haw. c. 29. s. 45. 1 Hale, 623.

(k) Fost. 361.

(7) See 2 Haw. c. 29. s. 41.

(m) 2 Haw. c. 29. s. 46. Summ. 222. 1 Hale, 624. Lord Hale, upon the authority of Gittin's case, Plowd. Com. 99.

can be tried as accessory after the conviction of the latter; but it seems now to be settled that he may (n), and that he may be convicted upon evidence of his being accessory to one, though he be charged as accessory to several.

If the principal and accessory appear together, and the principal plead the general issue, the accessory may be arraigned, and if he also plead the general issue, both may be tried by one inquest. But the principal must be convicted before the accessory; and the jury are charged by the court, that if they find the principal not guilty, they must acquit the accessory (o). But if the principal plead in abatement or in bar, the accessory is not arraigned till the plea of the principal be determined (p).

Where the principal and accessory are tried by the same inquest, it is competent to the latter to enter into a full defence of the former, and to avail himself of every matter of fact, and of every point of law tending to his acquittal; and when the accessory is tried after the conviction of the principal, and it appears, that the principal was not guilty of the felony as charged in the indictment, the accessory ought to be acquitted (7).

says, that in such case the court may arraign the defendant as accessory to him who has appeared, and that if he be acquitted, he may afterwards be indicted as accessory to the rest, See Staundf. 46. 7 H. 4. 36.

(n) Fost. 361. 9 Co. 119. (0) 2 Haw. c. 29. s. 47. 2 Hale, 625.

(p) 2 Ins. 184. Fost. 360. (g) Fost. 121. 365. 10 St. Tr. 417. R. v. Smith, Leach, 323.

CHAP. XIX.

Plea.

THE prisoner, being brought to the bar and arraigned, either stands mute, or confesses the charge, or answers in one of the following ways: 1. By a plea to the jurisdiction; 2. by a declinatory plea; 3. by a plea in abatement of the indictment for some defect contained in it; 4. by demurrer; 5. by a plea in bar; 6. by the general plea, that he is not guilty.

I. By a plea to the jurisdiction.

By this plea, the defendant totally denies the authority of the court to try him; as where an indictment for rape has been found before the sheriff in his torn, which he has delivered to the justices, then because the sheriff had no authority to take such an indictment, the defendant may plead to the jurisdiction without making any answer to the charge itself (a). So if justices of the peace should arraign a defendant for treason (b). But it seems, that the defendant cannot plead to an indictment before justices, that the offence was committed at some place beyond their jurisdiction, for this would amount to no more than the general issue (c). After a plea to the jurisdiction overruled, it seems that the judgment should

(a) 2 Hale, 256, 22 E. 4. 22. (b) 2 Hale, 256.

(c) See Trem. P. C. 271.

in all cases be to answer over to the charge in the indictment (d).

II. Declinatory pleas.

These were of two (e) kinds: first, the plea of privilege of sanctuary; by which a defendant, who had fled to a place of sanctuary, claimed under certain restrictions protection from process, and a right of being remanded if taken against his will, without being compelled to answer in any court of justice. But this privilege was abolished in the reign of James the first (f). Secondly, the benefit of clergy; but since no advantage can now be gained by this plea, which the defendant would not be equally entitled to after conviction; and since he would, by pleading it, lose the chance of an acquittal, the benefit of clergy is rarely pleaded, but, if necessary, is prayed by the convict before judgment (g).

III. By plea in abatement.

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.

1. On some defect apparent upon the record.

A prisoner indicted for felony cannot be allowed to have a copy of the indictment, though it is otherwise in cases of treason and misdemeanors (h); but the court will order an indictment for felony to be slowly read over to the prisoner, to afford him an opportunity of taking exceptions or preparing his plea (¿).

It seems in general that any defect, which, in any stage of the criminal proceeding, will vitiate the indictment, may be taken advantage of by plea in abatement (k).

And some defects must be pleaded in abatement, if insisted upon at all; such as the want of an addition, or the insertion of an improper one. So under the stat. 7 W. 3. c. 3. exceptions to indictments for high treason, (whereby any corruption of blood may be made,) on the ground of mis-writing, mis-spelling, false or improper Latin, must be taken before any evidence given upon such indictment, and shall be no ground of arresting the judgment. But little advantage is in general to be gained by a plea of this kind; since, with a few exceptions, the defendant will be entitled to the advantage of his objection after the trial (); and should his plea be allowed, the court would direct a new bill to be sent out to the grand jury, or, if they had been discharged, would detain the prisoner till the next assizes or sessions (m).

2ndly. Upon such defects as arise from facts dehors the record.

If the defendant be indicted by a wrong name, or be described by an improper addition, he may plead it; and if the fact be found for him, the indictment shall be abated (n). In case of misdemeanors, the defendant may plead misnomer by attorney (o). And in some instances, the plea has been allowed when made ore tenus (p). But regularly every plea of this kind ought to be tendered in writing (9), and should be verified by affidavit (r). In case of indictments, the defendant may plead misnomer

(k) 2 Hale, 236.

(1) 2 Hale, 237,

(m) Ib. 2 Haw. c. 34. s. 2.

(n) 2 Hale, 238.

(0) 10 East, 83.

(p) Dean's case, Leach, 535. (q) Layer's case, 6 St. Tr.

237.

(r) R. v. Grainger, 3 Burr. 1617.