State v. Birmingham
| Decision Date | 31 December 1852 |
| Citation | 44 N.C. 120 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JAMES BIRMINGHAM. |
The plea of autrefois acquit is no available defence, unless the facts charged in the second indictment would, if true, have been sufficient to support the first.
As, where the defendant was indicted for retailing spirituos liquor to one J. S., and it appeared that, upon the same facts, under a former indictment for retailing to “some person to the jurors unknown,” he had been acquitted, upon the ground that the retailing was to the snid J. S., and not to one unknown:-- Held that the plea of antrefois acquit was no bar to the second indictment.
(The case of State v. Jesse, 3 Dev. & Bat. 98, cited and aproved.)
APPEAL from Anson Superior Court of law, Spring Term, 1852, his Honor, Judge ELLIS, presiding.
The defendant was indicted for retailing spirituous liquor to one John Smith. Pleas-- not guilty and former acquittal. Upon the trial, the jury returned a special verdict, as follows:
His Honor, the presiding Judge, being of opinion in favor of the defendant, rendered judgment accordingly, and the Solicitor for the State appealed.
Attorney General, for the State .
J. H. Bryan, for the defendant .
The defendant pleads that he was heretofore tried and acquitted for the same offence. This is a bar to the indictment, if found to be true, and is founded upon the principle of the common law, that no one shall be brought into jeopardy of his life more than once for the same offence. And hence, says Justice Blackstone, it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment for any offence, before any Court having competent jurisdiction of the crime, he may plead it as a bar to any subsequent accusation for the same crime. 4 Bl. Com., 335. In order, however, to the efficacy of the defence, it is necessary the first indictment should be such that he could have been convicted on it. The plea must aver that the person mentioned in the first indictment is the same person as is mentioned in the second. The averment is as follows: “And the said J. S. in fact saith, that he, said J. S., and the said J. S. so indicted and acquitted, as last aforesaid, are one and the same person, and not other and different persons, & c.” Arch. Cr. Pl. 89. In an indictment under our ...
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