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c. 28; and the plea of clergy never occurs in practice, because it is more advantageous to the prisoner to pray clergy after, than to plead it before, conviction. Where clergy is pleaded, the crown answers by a replication; where prayed merely after conviction, the pleading upon the part of the crown, stating reasons why clergy should not be granted, is termed a counterplea of clergy.

Before we proceed to give the form of a counterplea of clergy, it may be necessary to notice the cases in which it may be pleaded. The benefit of clergy is allowed in all cases of felony, unless taken away by the express words of an act of parliament. 2 Hale, 330. In high treason, petit larceny, and misdemeanors, it was never allowed. Clergymen are entitled to it, as often as they offend; 2 Hale, 375; and consequently when a clergyman prays clergy, a counterplea of clergy cannot be pleaded. The only thing to be observed with respect to clergymen is, that in order to claim the benefit of clergy a second time, they must produce their orders. 4 Hen. 7. c. 13. But peers, peeresses, and lay commoners, are entitled to the benefit of clergy but once; and therefore, if they have been once convicted of a clergyable felony, and afterwards claim the benefit of clergy when indicted for felony a second time, the clerk of arraigns, or clerk of the peace, may plead in bar a counterplea of clergy. The counterplea may be in this form :

"And J. N., who prosecutes for our said Lord the King in this behalf, (having heard J. S., who now here stands convicted of having unlawfully and feloniously, and against the form of the statute in such case made and provided, counterfeited one piece of copper money of this realm, called a farthing, pray the benefit of clergy, and of the statute in such case made and provided, to be allowed him in this behalf), saith, that the said J. S. ought not to be allowed the said benefit of clergy, or of the statute in such case made and provided; because he saith, that heretofore, and before the committing of the said felony, by the said J. S., of which the said J. S. now stands convicted as aforesaid, to wit, [at the general quarter sessions of the peace," &c., so continuing to recite the record, from the caption of the indictment to the judgment, inclusive, as in the plea of auterfois acquit. See Ante, p. 52. Then continue the counterplea thus] : "As by the record and proceedings thereof, more fully and at large appears: which said judgment still remains in full force and effect, not in the least reversed or made void. And the said J. N., who prosecutes as aforesaid, in fact saith, that J. S., who was so indicted and convicted, and to whom the benefit of clergy was so allowed, as last aforesaid, and the said J S., who now here stands convicted as first aforesaid, are one and the same person, and not other and different persons. Wherefore, because the

said J. S. hath already been admitted to clergy, and allowed the benefit of the statute in such case made and provided, the said J. N., for our said Lord the King, prays judgment, and that he the said J. S., for the felony of which he now here stands convicted as first aforesaid, may receive judgment to die according to law."

The prosecutor must prove the substance of the counterplea that is, he must prove the record of the former conviction, and allowance of clergy, in the manner pointed out hereafter under the title evidence; and prove the identity of the defendant, by parole evidence.

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PART II.

EVIDENCE, GENERALLY.

CHAPTER I.

What Allegations must be proved.

WHERE the defendant pleads the general issue, not guilty, the prosecutor is obliged to prove at the trial every fact and circumstance stated in the indictment, which is material, and necessary to constitute the offence. So, where the replication, or other pleading on the part of the prosecution, consists of a general traverse of the defendant's pleading, the defendant must prove the facts thus traversed and put in issue. See Arch. Pl. & Ev. 329, 330. The parts of a pleading, required to be thus proved, may be considered under the following heads :

Time.] The day and year on which facts are stated in the indictment or other pleading to have occurred, is not in general material; and the facts may be proved to have occurred upon any other day previous to the preferring of the indictment. See Ante, p. 14. Holt, 301, 1 Salk. 288. 9 St. Tr. 587-605. 543-552. Fost. 7, 8. To this rule, however, there are these exceptions; namely, First, That in all cases where bills of exchange, promissory notes, or other written instruments, not under seal, are pleaded, the date, if stated, must correspond with the date of the instrument when produced in evidence at the trial; otherwise the variance will be fatal. 2 Camp. 307 n. See 4 Camp. 209. Arch. Pl. & Ev. 331, 332. Secondly, as deeds may be pleaded either according to the date which they bear, or to the day on which they were delivered (Arch. Pl. & Ev. 100.), if a deed produced in evidence, bear date on a day different from that stated in the pleading, the party producing it must prove that it was in fact delivered on the day alleged in the pleading,

otherwise the variance will be fatal. Thirdly, if any time stated in a pleading, is to be proved by matter of record, the slightest variance between the time so stated, and that appearing from the record when produced, will be fatal. See 1 T. R. 656. 4 T. R. 590. 11 East, 508. 2 Saund. 291 b. 1 H. Bl. 49. Fourthly, when the precise date of any fact, is necessary to ascertain and determine with precision the offence charged, or the matter alleged in excuse or justification, any the slightest variance between the pleading and evidence in that respect will be fatal. See Arch. Pl. & Ev. 332. And, lastly, in burglary, and house-breaking (on stat. 39 E. c. 15), the former must be proved to have been committed in the night time, the latter to have been committed in the day time, although the day on which the offence is charged to have been committed is immaterial, and it may be proved to have been committed on any other day previous to the preferring of the indictment. In murder, also, the death must be proved to have taken place within a year and day from the time at which the stroke is proved to have been given.

Place.] It is not necessary to prove that the facts stated in the indictment or other pleading, occurred in the parish or place therein alleged; it is sufficient to prove that they occurred within the county or other extent of the court's jurisdiction. 2 Hawk. c. 25. s. 84. Ante, p. 14. But they must be proved to have been committed within the county, or other extent of the court's jurisdiction, otherwise the defendant must be acquitted. And where a forged bill of exchange was found upon J. S., who resided in Wiltshire, and had resided there about a year, under a false name, but which bill bore date more than two years previously to its being found upon him, and at a time when he lived in Somersetshire on an indictment against him for a forgery of the bill in Wiltshire, this was holden not to be sufficient evidence of the offence having been committed in that county. R. v. Crocker. 2 New. Rep. 87.

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To the above rule, as to the parish and place being immaterial, there are, however, these exceptions; namely, First, that if the statute upon which the indictment is framed, give the penalty to the poor of the parish in which the offence was committed, the offence must be proved to have been committed in the parish stated in the indictment. Secondly, upon an indictment against a parish for not repairing a road, the part of a road out of repair, must be proved to be within the parish; and the same in all other cases, in which the place where the fact occurred is a necessary ingredient in the offence. Thirdly, if a place mentioned in pleading be stated, as part of the description of a written instrument, or is to be proved by matter of record, any the slightest variance be

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tween the place as stated, and that appearing from the written instrument or record when produced, will be fatal. 9 East, 188. 4 Taunt. 700. 671. 6 Taunt. 394. 2 Camp. 5 n. 274. And, lastly, where the place is stated as matter of local description, and not as venue merely, the slightest variance between the description of it in the indictment and the evidence, will be fatal. Thus, for instance, in an indictment for stealing in the dwelling house, &c. for burglary, arson, shooting into a house with intent to kill, or for forcible entry, or the like, if there be the slightest variance between the indictment and evidence in the name of the parish or place where the house is situate, or in any other description given of it, the defendant must be acquitted. The rule is the same, in this respect, in criminal cases, as in civil actions. And where, in an action for non-residence, the parish was styled in the declaration St. Ethelburg, and the real name appeared in evidence to be St. Ethelburga, it was holden a fatal variance. 2 B. & P. 281. So, in an action for a nuisance in erecting a weir, if it be described in the declaration to be at H., and be proved to be at a lower part of the same water, called T., the variance is fatal. 2 East, 500. In trespass for breaking and entering a house, situate in the parish of Clerkenwell, it appeared at the trial that there were two parishes in Clerkenwell, namely, St. James's and St. John's, and that the house was situate in the former; and Gibbs, C. J., nonsuited the plaintiff for this variance. 1 Holt, 523. But where, in ejectment, the premises were laid to be in Farnham, and proved to be in Farnham Royal, it was holden not to be a fatal variance, unless it were shewn that there were two Farnhams. 13 East, 9. See Arch. Pl. & Ev. 333.

Also, if it appear in evidence, that there is no such place within the county, as that where a treason or felony is alleged in the indictment to have been committed, it should seem that the defendant must be acquitted; the stat. 9 Hen. 5. st. 1. c. 1. enacts, that the indictment in such a case shall be void.

The offence charged.] Every offence consists of certain acts done, or omitted, under certain circumstances; all of which must be stated in the indictment (see ante, p. 15), and be proved as laid; any material variance between the fact laid and the fact proved, will be fatal. Thus, for instance, where in an indictment for obtaining money by false pretences, the false pretence stated was that the defendant said that he had paid a sum of money into the bank, and the proof was that he said that a sum of money had been paid into the bank, without saying by whom ; the defendant was acquitted for the variance, Lord Ellenborough holding that there was a difference in substance between the two assertions. R. v. Plestow, 1 Camp. 494.

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