United States v. Shorey

27 F. Cas. 1070, 9 Int. Rev. Rec. 201

• Court: U.S. Circuit Court for the District of New Hampshire
• Decided: May 15, 1869
• Status: Published

Opinion

BY THE COURT.

Argument for the defendant is that the indictment is barred by that provision, but there is a preliminary question to be decided before that proposition can be considered. Two pleas are pleaded by the defendant, and the first question is whether double pleading is allowable in criminal cases. No such objection was taken by the district attorney, but the question is one affecting the regularity of the proceedings in criminal cases in the federal courts, and cannot be allowed to pass without notice. Special matter which is in law a bar to an indictment, may in certain cases be so pleaded in misdemeanors, but the rule is well settled that the defendant cannot plead specially in bar of the indictment if he pleads the general issue, as double pleading is unknown in criminal procedure. 1 Starkie, Cr. Pl. 335; Heyrick v. Foster, 4 Term R. 701. Double pleading is not allowable, and if autrefois acquit be pleaded with not guilty, one of the pleas will be struck off. Reg. v. Strahan, 7 Cox, Cr. Cas. 85; 1 Am. Cr. Law (4th Ed.) § 530; State v. Copeland, 2 Swan, 626; Morgan v. Luckup, 2 Strange, 1044. At common law there was but one rule which applied alike to civil and criminal proceedings that the defendant must rely upon one ground of defence, and that double pleading was never to be admitted. 4 Bl. Comm. 332; 2 Hale, P. C. 236; Hawk. P. C. 32. Inconvenience, however, resulted from such strictness, and the rale was relaxed by St. 4 Anne, c. 16, §§ 4, 5, which enabled the defendant by leave of the court, to plead as many matters as he saw fit, but the statute contained a proviso that nothing contained therein should extend to any indictment or presentment of treason, felony, or murder, or any other matter, or to any action upon a penal statute. 1 Chit. Cr. Law, 434.

Injustice might be done to the defendant if the court should strike out the first plea, and decide the case upon the second, and in view of the circumstances the court decides to strike out the second plea, and allow the case to stand for trial, but the defendant, if he sees fit, may withdraw his plea of not guilty, and demur to the indictment, with leave to plead over if the demurrer is overruled.