The following case was presented by the record: The prisoner (258) was indicted for, and convicted of, grand larceny. The Attorney-General having moved for judgment, the judge demanded of the said Hardy Carroll, the prisoner, what he had to say why sentence of death should not be pronounced against him, whereupon the prisoner, through his counsel, craved the benefit of his clergy; upon which it was suggested by the Attorney-General that the prisoner had before been convicted of a grand larceny and felony, and had then extended to him his clergy, and, as such, was not entitled to it the second time, and offered to the court the original records, showing the former conviction and the fact of the prisoner's then having had the benefit of his clergy. It was objected by the prisoner's counsel that there should be a counterplea in writing, and that it should set forth the former indictment, verdict, and judgment, and that the objection could not be received ore tenus, as the prisoner had a right to reply nul tiel record, and that he was not the same person, and had a right to a trial by a jury as to his identity. The *Page 184 court, being of this opinion, sustained the prisoner's objection to the oretenus suggestion of the Attorney-General, and allowed him his clergy, and thereupon pronounced the following judgment, to wit, that the prisoner be twice publicly whipped, and receive at each of the said whippings thirty-nine lashes on his bare back. Whereupon the Attorney-General prayed an appeal to the Supreme Court from the judgment of the court extending to the prisoner the benefit of clergy, which appeal was allowed by the court. The prisoner was convicted of grand larceny. When he was brought up for judgment he prayed the benefit of clergy. The prayer was resisted on behalf of the State, and the Attorney-General offered to read to the court the record of a prior conviction for the (260) same offense, when the prisoner had once before been allowed his clergy. The court refused to hear, in this way, the evidence of a former conviction and allowance of clergy. We are of opinion that the court acted correctly. When the benefit of clergy is demanded by a prisoner, who can only once receive it, and the prayer is entered on the record, the State may file a counterplea, stating that he has had it before, in order to bar his present claim. But where no counterplea is filed, clergy is allowed of course. 1 Chitty Crim. L., 688, 689 (Am. Ed.). The counterplea always recites the record of the prior conviction, the prayer of clergy, and the allowing of the same by the court; and then it makes an averment that the prisoner is the same person who was so convicted, and no other or different person; and the plea concludes with a prayer that the prisoner receive judgment to die according to law. To such a counterplea the prisoner may reply nul tiel record, and also deny that he is the person named in the said record. Scott's case, 1 Leach Cr. Cases, 402, 403 (4 Ed.). If the State was not compelled to counterplead on the record, the prisoner would be unable to put in his replication and make up an issue as to his identity to be submitted to a jury, which he is entitled to by law. It is, therefore, not admissible for the Attorney-General to counterplead ore tenus at the bar; the plea should be filed in writing. The form of such a plea may be seen in Scott's case, cited above. The judgment must be
PER CURIAM. Affirmed. *Page 185
(261)