the maxim of the common law is, that no man is to be brought in jeopardy of his life, fecurity, liberty or property, more than once for the fame crime. Therefore when a perfon has once been acquitted, he may plead fuch acquittal in bar, to a profecution for the fame crime. On the fame principle, if a perfon has once been convicted of a crime, he may plead it in bar to a profecution for the fame offence, for no man fhall be punished twice for the fame crime. A perfon may plead in bar to a profecution, the statute of limitations. No perfon fhall be indicted, profecuted, informed against, complained of, or compelled to anfwer before any court, affiftant or justice of the peace, for the breach of any penal law, or for other crime or misdemefnor, by reafon whereof any forfeiture belongs to any public treafury, unlefs the indictment, prefentment, information, or complaint, be exhibited within one year after the offence is committed. And every indictment, information, prefentment, and complaint not exhibited within the time limitted, fhall be void and of no effect: provided that this act fhall not extend to any capital offence, nor to any crime that may concern lofs of member or banishment, or any treachery against this ftate, nor to any pilring or theft, the value whereof is above ten fhillings, nor fhall it affect the private rights of individuals. This law extends to offences at common law, as well as thofe created by ftatute. If the special matter pleaded in bar of the profecution, be found against the prifoner, he may in capital cafes further plead the general iflue of not guilty, for on that plea only can a man be fubjected to judgment of death. 5. The general flue of not guilty, is the proper plea when the perfon wishes to have a trial upon the profecution. When he makes the answer of "not guilty," at the time he is put to plead, the flue is clofed without making any anfwer ou the part of the ftate. This is the only proper plea where the facts are contefted, for a perfon indicted or informed againft, cannot plead any fpccial matter by way of juflification. As on an indictment for aurder, a man cannot plead that it was in his own defence, againf Statutes, 127. 74 Black. Com. 348. againft a robber on the highway, or a burglarian; but he must plead generally not guilty, and give the fpecial matter in evidence : for fuch a fpecial plea not only amounts to the general iffie, but as in all criminal profecutions the facts are charged to be done with a criminal intent, which is the gift of the information, the whole ought to be directly negated: for tho it appears on the trial, that the facts were done, yet if it appears, that they were not done with a criminal intent, the person cannot be found guilty. There can therefore, never be a propriety in confeffing the facts, and then juftifying, becaufe the mere proof of the fact, without fhewing the criminal intent, cannot be fufficient to convict a perfon. The confequence is, that in every criminal profecution, the prifoner has the fame privilege of contefting the criminality of the intent, as the truth of the facts on the general iffue, which therefore can only be the proper plea. CHAPTER TWENTY-FOURTH. OF TRIAL. WHEN the prifoner has pleaded not guilty, the clerk of the court will ask him. By whom he will be tried? In cafes not capital the proper anfwer is, "By my country," but in cafes capital, the anfwer is, " By God and my country." The putting the queftion to the prifoner to decide by whom he will be tried, seems to imply, that he has an option. This was introduced into England at a time when there were various methods of trial, and the prifoner had actually a choice. The practice has been continued here, tho a perfon has no fuch choice: for the only legal method. by which the perfon accufed can be tried, is by the jury. The ftatute law fays, that every perfon profecuted for any delinquency before the fuperior or county courts, fhall have liberty of trial by jury, if desired, but has provided no other mode if desired, nor is any other mode known to the common law. When therefore a perfon accused of a crime, wishes to try the queftion of fact, he must defire a jury; for the court cannot be judges of facts, unless expressly authorised by fome ftatute, as they are in civil cafes, / Statutes, 39. Сег Our courts however seem to have adopted the principle, that they have the power to try a criminal, if they pleafe on his requeft, and have proceeded to try them for offences not capital. By the ufual mode of trial upon the plea of not guilty, is by jury; which we are to confider in this chapter, and which would furnish all the neceflary information, in cafe the iffe fhould be tried by the court. Before every court, the jury which is returned for civil, is returned for criminal caufts. When the caufe is ordered for trial, the jury appear, confifting of twelve returned as aforefaid, or if the number be deficient, they are to be fupplied as in civil cafes; the prifoner is placed at the bar of the court, and then an opportunity is given him to make his challenges. Challenges are of two kinds; challenges for caufe, and peremptory challenges. t 1. Challenges for caufe, are for the fame reafons in criminal, as in civil caufes, they are for fome defect, as want of ellate, age, or freedom for foine crime, as where a perfon has been convicted of fome crime for which he has received an infamous punishment, or for fome relation to the perfons concerned or intereflcd: or for fome bias, prejudice, or partiality. Thefe challenges are equally allowed to the state and the prifoner in all cafes capital or not capital.. 2. Peremptory challenges are without fhewing any caufe, and are admitted only in capital cafes. By the common law, the pri foner might challenge peremptorily, thirty five jurors,— but the ftatute law has limitted the number to twenty. This privilege manifefts great tenderness and humanity to the prifoner: for there are numerous inftances, where jurors will be returned to try a prifoner, against whom he has no legal challenge, and yet there are ftronger reafons why he fhould decline being tried by him, than in thofe inftances where the law allows him to challenge. It may fometimes happen that a challenge for caufe may be made, and over ruled, which will naturally give the juror fuch a prejudice, that the prifoner would be unwilling to truft bis fate in bis hands. Indeed it is apparent that there will be a thousand caufes exifting, #4 Black. Com. 352. # Statutes, 67. for for which a prifoner would objet against a juror, which do not come within the general principles of challenges for caufe: and for which it would be impracticable to make legal provifion. For the purpofe then of giving a perfon the fairest trial, he is indulged with the privilege of challenging twenty jurors, without affigning any reafon, which will give him an opportunity of rejecting all thofe against whom he has conceived any prejudice, from their appearance, condi&t, or character. When by reafon of challenges with, or without cause, the number of jurors returned as atorelaid, is not fufficient to make up a panel, the court order the sherif, or if he is interested, concerned, or related to the party, then the constable or fach other officer as they fhall appoint, to return a fufficient number of the bystanders, (de talibus circumftantibus,) and for want of fuch, any good and lawful freeholders of the county. When there are twelve jurors returned, against whom the prifoner has no exception, or where he has challenged twenty peremptorily, and there are twelve returned, against whom he has no challenge for caufe, then the panel is compleat, and the jury may be faid to be empannelled for if the prifoner fhould pertift in challenging more than twenty, peremptorily, the court would difregard fuch challenge, and order the trial to proceed. When the jury are empannelled, they are fworn, well and truly to try, and true deliverance make, between the State of Connecticut, and the prifoner at the bar, without refpect of perfons, or fear of man, according to law and evidence. The attorney for the flate then proceeds to lay before the jury, all the evidence against the prifoner, without any remarks or arguments. The prifoner by himself or counfel, is then allowed to produce witnefles to counteract and obviate the teftimony against him; and to exculpate himself with the fame freedom as in civil cafes. We have never admitted that cruel and illiberal principle of the common law of England, that when a man is on trial for his life, Le fhall be refufed counfel, and denied thofe micans of defence, which are allowed, when the moft trifling pittance of property is in question. The flimfy pretence, that the court are to be rsanfel for the prifoner will only heighten our indignation at Statutes 19. the the practice for it is apparent to the leaft confideration, that a court can never furnish a perfon accufed of a crime with the advice, and affiftance neceffary to make his defence. This doctrine. might with propriety have been advanced, at the time when by the common law of England, no witneffes could be adduced on the part of the prifoner, to manifeft his innocence for he One cannot could then make no preparation for his defence. read without horror and astonishment, the abominable maxims of law, which deprive perfons accufed, and on trial for crimes, of the afliftance of counfel, except as to points of law, and the advantage of witnelles to exculpate themfeives from the charge. It feems by the ancient practice, that whenever a perfon was accufed of a crime, every expedient was ad pted to convict him, and every privilege denied him, to prove his innocence. In England, however, as the law now ftands, prifoners are allowed the full advamage of witneffes, but excepting in a few cafes, the common law is enforced, in denying them counfel, except as to points of law. Our ancestors, when they firft enacted their laws refpecting crimes, influenced by the illiberal principles which they had imbibed in their native country, denied counfel to prifoners to plead for them to any thing but points of law. It is manifelt that there is as much neceffity for counfel to inveftigate matters of fact, as points of law, if truth is to be difcovered. The legiflature has become fo thoroughly convinced of the impropriety and injuftice of thackling and reftricting a prifoner with refpect to his defence, that they have abolished all those odious laws, and every perfon when he is accufed of a crime, is entitled to every poffible privilege in making his defence, and manifefting his innocence, by the inftrumentality of counfel, and the teftimony of witneflès. Evidence in criminal cafes is regulated by nearly the fame principles as in civil cafes. There are few leading points in which there is a difference, which it will be proper to confider in this place. In all capital cafes, the law requires two or three with fies, or that which is equivalent. The fatute bys, that no perfon for F Statutes, 264. |