no slanderer has ever ventured to even as much as question. A blameless life, oftentimes, though not always, gives origin to such a reputation. But when it can be said of a man, by those well acquainted with him, that they never heard his reputation as to truth and morals discussed, denied or doubted, it is equivalent to passing upon him the highest enconium. The authorities abundantly establish that the person testifying need not base his means of knowledge on what is "generally said" of the person whose character is in question, but may base his knowledge of the reputation of such person on evidence of the negative nature above noted. Lemons v. State, 4 W. Va. 755, 6 Am. Rep. 293; Gandolfo v. State, supra; Cockburn, Ch. J., in Reg. v. Rowton, 1 Leigh & C. 536; State v. Grate, 68 Mo. 22; Kelly, Crim. L. § 241. See 1 Rice, Civil Evidence, p. 629.

CHAPTER XLVI.

EVIDENCE OF FORMER JEOPARDY OR CONVICTION.

§ 381. Doctrine of Autrefois Acquit and Convict Examined. 382. How Question is Determined.

383. Views of Mr. Bishop.

384. Evidence that Jury were Discharged is Equivalent to an Acquittal.

385. Miscellaneous Authorities Examined.

§ 381. Doctrine of Autrefois Acquit and Convict Examined. The provision of the Constitution of the United States, that no person shall be twice put in jeopardy of life or limb for the same offense, is an explicit and solemn recognition of the maxim of the common law that no man shall be twice tried for the same offense; and the test by which the courts determine whether a person has been once in jeopardy, or once already tried, is whether a plea of autrefois acquit or autrefois convict can be sustained, according to the rules of the common law. People v. Goodwin, 18 Johns. 187; Story, Const. § 1787.

There is, it must be allowed, at least a seeming inconsistency in the language of the authorities upon the question. Mr. Justice Blackstone (4 Bl. Com. 336) says that the plea of a former conviction for the same identical crime, though no judgment was ever given or perhaps ever will be (being suspended by the benefit of clergy or for other causes) is a good plea in bar to an indictment. On the other hand, Sir Matthew Hale (Hale, P. C., 248) cites Vaux's Case, 4 Coke, Rep. 45, as holding that autrefois convict by verdict is no plea, unless judgment be given upon the conviction. In the opinion of Chief Justice Spencer, in the case of People v. Goodwin, supra, he says, speaking of a plea of a former acquittal, that, to render it a bar, there must have been a legal acquittal by judgment upon a trial for the same offense and the verdict of a petit jury. Chitty, in his Criminal Law (vol. 1, p. 462) speaks somewhat less distinctly of a sentence or judgment being requisite. He says, "the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful, on a sufficient indictment; and if he has neither

received sentence nor prayed the benefit of clergy, this plea is said not to be pleadable if the former indictment were invalid." There would seem to be a practical injustice, and an inconsistency with the meaning and spirit of the common law rule, as adopted by the constitutional provision in this country, in demanding that a prisoner should have received sentence in all cases before he should be allowed to plead that he had been once convicted, or had been once in jeopardy for the same offense. Rex v. Bowman, 6 Car. & P. 101; State v. Elden, 41 Me. 165; Com. v. Roby, 12 Pick. 496.

Pleas of the kind must allege that the former trial was in a court having jurisdiction of the case, and that the person and the offense are the same, and must set forth the former record, else the plea will be bad. Rex v. Wildey, 1 Maule & S. 188; 2 Russell, Crimes (4th ed.) 60; Rex v. Edwards, Russ. & R. 224.

Standard authorities which show that the plea of a former conviction or acquittal must set forth the substance of the record are very numerous and decisive. Where the plea is autrefois convict, it must appear that the prisoner received sentence as required by law; or if the plea be autrefois acquit, it must appear that the court gave the order that he go without day. Roscoe, Crim. Ev. (8th ed.) 199.

Defenses of the kind are often set up; and in order to avoid false pretenses, the established rule is, that the accused is required not only to show the nature of the former prosecution and the conviction or acquittal with certainty in his plea, but also to show the record or its substance to the court, by producing or vouching it at the time he pleads, for otherwise it would be in his power to delay the trial when he pleased by pleading a former conviction or acquittal in another jurisdiction; and, in order to prevent such false pretenses in pleading, the requirement is, that the plea shall show the record, or vouch it if it be in the same court in the first instance, and that he is not allowed to wait until nul tiel record is pleaded by the prosecutor. 2 Stark. Crim. Pl. 350.

The rule may be stated to be, that, to make the plea a bar, proof of the facts alleged in the second indictment must be sufficient in law to have warranted a conviction upon the first indictment of the same offense charged in the second, and not of a different offense. The general rule adopted for ascertaining the identity of the offenses is as stated by Archbold in his work

on Criminal Pleading, p. 106, where it is said: "The true test by which the question whether the plea is a bar in any particular may be tried is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first." Substantially the rule has been stated in the same way by Chitty in his work on Criminal Law. Campbell v. People, 109 Ill. 565, 50 Am. Rep. 621.

"To sustain this plea (autrefois convict or acquit), it is not sufficient simply to put in the former record; some evidence must be given that the offenses charged in the former and present indictments are the same. This may be done by showing, by some person present at the former trial, what was the offense actually investigated there; and, if that is consistent with the charge in the second indictment, a presumptive case will thus be made out, which must be met by proof on the other side, of the diversity of the two offenses." Wilson v. State, 45 Tex. 77, 23 Am. Rep. 602; 1 Bishop, Crim. Proc. § 816.

It is the settled law that an acquittal on one indictment, in order to be a good defense to a subsequent indictment, must be an acquittal of the same identical offense as that charged in the second indictment. That fact must in some way appear from the plea itself, and that the offenses charged in both cases were the same in law and in fact. Com. v. Roby, 12 Pick. 496. The question must be determined by the facts appearing from the record, without the aid of extrinsic circumstances.

What constitutes legal jeopardy has led to much discussion and diverse constructions. By most courts the constitutional provisions forbidding that any person be subject for the same offense to be twice put in jeopardy (U. S. Const. Amendments, art. 5; N. Y. Const. art. 1, § 6) are construed to mean nothing more than the common law rule as applied in the plea of autrefois acquit. In such construction there must have been a final verdict of conviction or acquittal upon a valid indictment. Such is the rule in the United States courts (United States v. Gilbert, 2 Sumn. 41); in Massachusetts (Com. v. Bowen, 9 Mass. 494); in New York (Shepherd v. People, 25 N. Y. 406); and in many other states, as may be seen by reference to 1 Whart. Am. Crim. L. §§ 482-587. In other courts and in other states a very technical rule is adopted.

The words, by the law of the land, as used originally in Magna Charta, in reference to this subject, are understood to mean due

process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of those words. The better and larger definition of due process of law, is that it means law in its regular course of administration, through courts of justice. 3 Story, Const. 264, 661; 1 Kent, Com. pt. IV., p. 13.

It is well settled, by abundant authority, that a person charged with the commission of a criminal offense, may waive any irregularity which exists in the case. He may waive a constitutional provision which is intended for his benefit. He may waive a trial by jury; he may waive a plea of autrefois acquit by not interposing it. He may also waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court. Pierson v. People, 79 N. Y. 424.

§ 382. How Question is Determined.-Obviously the most conclusive evidence the defense can furnish, is the record of the former conviction, and this seems to be required under the Missouri law. State v. Rugan, 68 Mo. 214. But as this rule would impose an unnecessary hardship upon the defense, it is well settled in most jurisdictions, that the record of the judgment is not absolutely essential. The identity of the two offenses may be established by either record or parol evidence. State v. Maxwell, 51 Iowa, 314; Dunn v. State, 70 Ind. 47; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542.

Whether the accused has been previously tried for the same offense is a question to be determined partly by the record of the previous trial, and partly by parol evidence in connection with it for the purpose of identification. The burden of maintaining the defense of former jeopardy is upon the person pleading it; the record of a conviction of one of the same name raises a presumption of identity, and where the offense proved on the former trial corresponds with that alleged in the complaint, the presumption is that they are the same. While the record of the former trial is necessary, if it is not accompanied by other evidence, it will be insufficient to sustain the plea, it being equally necessary to produce proof that the former prosecution was for the same offense, and it must not only show that jeopardy had once attached, but also that it had not been discharged by operation of law or waived by some act of the defendant. Am. & Eng. Enc. Law, title Jeopardy, citing Bailey v. State, 26 Ga. 579; Campbell v. State,