PLEA to Indictment

PLEA to Indictment, the defensive matter alleged by Blackst. Comment. a criminal on his indictment; (see ARRAIGNMENT). This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

I. A plea to the jurisdiction, is where an indictment is taken before a court that hath no cognizance of the offence; as if a man be indicted for a rape at the sheriff's town, or for treason at the quarter-sessions: in these or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged.

II. A demurrer to the indictment, is incident to criminal cases, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists, that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man be indicted for feloniously stealing a greyhound; which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass to steal it; in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held, that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others, who hold, that in such case he shall be directed and received to plead the general issue, Not guilty, after a demurrer determined against him. Which appears the more reasonable, because it is clear, that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court whether it be felony or no; and upon the fact thus shown, it appears to be felony, the court will not record the confession, but admit him afterwards to plead not guilty. And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and, though a man by misleading may in some cases lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used; since the same advantages may be taken upon a plea of not guilty; or afterwards, in arrest of judgment, when the verdict has established the fact.

III. A plea in abatement is principally for a misnomer, a wrong name, or a false addition to the prisoner. As, if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an esquire. And, if either fact is found by a jury, then the indictment shall be abated, as writs or declarations may be in civil actions. But, in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas; because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he who takes advantage of a flaw, must

must at the same time show how it may be amended. Let us, therefore, next consider a more substantial kind of plea, &c.

IV. Special pleas in bars; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds: a former acquittal, a former conviction, a former attainer, or a pardon. There are many other pleas which may be pleaded in bar of an appeal: but these are applicable to both appeals and indictments.

1. First, the plea of auterfois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.

2. Secondly, the plea of auterfois convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime.

3. Thirdly, the plea of auterfois attaint, or a former attainer, is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by abjuration, and whether upon an appeal or an indictment; he may plead such attainer in bar to any subsequent indictment or appeal, for the same or for any other felony. And this because, generally, such proceeding on a second prosecution cannot be to any purpose; for the prisoner is dead in law by the first attainer, his blood is already corrupted, and he hath forfeited all that he had: so that it is absurd and superfluous to endeavour to attaint him a second time. Though to this general rule, as to all others, there are some exceptions; wherein, cessante ratione, cessant et ipsa lex.

4. Lastly, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment, by remitting that punishment, which the prosecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in the arrest of judgment before sentence is past; which gives it by much the preference to pleading it after sentence or attainer. This is, that by stopping the judgment it stops the attainer, and prevents the corruption of the blood: which, when once corrupted by attainer, cannot afterwards be restored otherwise than by act of parliament.

V. The general issue, or plea of not guilty, upon which

plea alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he must plead the general issue, Not guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue; since, if true, the prisoner is most clearly not guilty) as the facts in treason are laid to be done proditorie et contra ligantia sua debitum; and, in felony, that the killing was done felonice; these charges, of a traitorous or felonious intent, are the points and very gist of the indictment, and must be answered directly, by the general negative, Not guilty; and the jury upon the evidence will take notice of any defensive matter, and give their verdict accordingly as effectually as if it were or could be specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner.

When the prisoner hath thus pleaded not guilty, non culpabilis, or nient culpable: which was formerly used to be abbreviated upon the minutes, thus, Non (or nient) cul. the clerk of the assize, or clerk of arraignment, on behalf of the crown, replies, that the prisoner is guilty, and that he is ready to prove him so. This is done by two monosyllables in the same spirit of abbreviation, (cul. prit): which signifies first that the prisoner is guilty, (cul. culpable, or culpabilis); and then that the king is ready to prove him so, (prit, prasto sum, or paratus verificare). By this replication the king and the prisoner are therefore at issue: for when the parties come to a fact which is affirmed on one side and denied on the other, then they are said to be at issue in point of fact: which is evidently the case here, in the plea of non cul. by the prisoner; and the replication of cul. by the clerk.

How the courts came to express a matter of this importance in so odd and obscure a manner, can hardly be pronounced with certainty. It may perhaps, however, be accounted for by supposing, that these were at first short notes, to help the memory of the clerk, and remind him what he was to reply; or else it was the short method of taking down in court, upon the minutes, the replication and averment; cul. prit.: which afterwards the ignorance of succeeding clerks adopted for the very words to be by them spoken (A).

But however it may have arisen, the joining of issue seems to be clearly the meaning of this obscure expression; which has puzzled our most ingenious etymologists, and is commonly understood as if the clerk of the arraignment, immediately on plea pleaded, had fixed an opprobrious name on the prisoner, by asking him, "culprit, how wilt thou be tried?" for immediately upon issue joined it is inquired of the prisoner, by what trial he will make his innocence appear. This form has at present reference to appeals and approvals only, wherein the appellee has his choice, either to try the accusation by