It is too late, in my opinion, to inquire whether this court pronounced a correct judgment in directing a new trial upon the former writ of error. The People and the prisoner acquiesced in and pursued that judgment, and the new trial which it ordered has been had. It was not necessary that the trial should be upon a plea of not guilty, involving the merits of the indictment. The prisoner was allowed, in the Court of Oyer and Terminer, by an exercise of discretion which we cannot review, to withdraw her plea of not guilty, and plead three special pleas in bar. To these the district attorney replied specially. The prisoner demurred to the replications, and the People joined in demurrer, and the issue of law thus made was tried in the court in which the indictment was pending. This was a new trial of the prisoner in conformity with the order of the Court of Appeals, and whether that order was correctly or inadvertently made, cannot now be considered. We are only concerned with the result of the trial which has been had under it.
The two first pleas of the prisoner are in substance the same. The provision of the Constitution of the United States, that no person shall be twice put in jeopardy of life or limb for the same offence, is an explicit and solemn recognition of the maxim of the common law that no man shall be twice tried for the same offence; and the test by which the courts determine whether a person has been once in jeopardy, or once already tried, is whether a plea of autrefois acquit or autrefois convict can be sustained, according to the rules of the common law. *Page 183 (People v. Goodwin, 18 John., 187; Story on the Constitution, § 1787.)
Great learning and ability were displayed on both sides in the argument at the bar, whether, to sustain a plea of autrefoisconvict, there must be a judgment as well as a verdict. There is, it must be allowed, at least a seeming inconsistency in the language of the authorities upon the question. Mr. Justice BLACKSTONE (4 Comm., 336), says that the plea of a former conviction for the same identical crime, though no judgment was ever given or perhaps ever will be (being suspended by the benefit of clergy or for other causes), is a good plea in bar to an indictment. On the other hand, Sir MATTHEW HALE (Pl. Cor., 248), cites Faux's case (4 Co. R., 45), as holding thatautrefois convict by verdict is no plea, unless judgment be given upon the conviction. In the opinion of Chief Justice SPENCER, in the case of The People v. Goodwin (supra), he says, speaking of a plea of a former acquittal, that, to render it a bar, there must have been a legal acquittal by judgment upon a trial for the same offence and the verdict of a petit jury. Chitty, in his Criminal Law (vol. 1, p. 462), speaks somewhat less distinctly of a sentence or judgment being requisite. He says, "the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful, on a sufficient indictment; and if he has neither received sentence nor prayed the benefit of clergy, this plea is said not to be pleadable if the former indictment were invalid." There would seem to be a practical injustice, and an inconsistency with the meaning and spirit of the common law rule, as adopted by the constitutional provision in this country, in demanding that a prisoner should have received sentence in all cases before he should be allowed to plead that he had been once convicted, or had been once in jeopardy for the same offence. It might be in the power of the court before whom the first trial was had arbitrarily to suspend sentence. I am not aware of any power or right on the part of a prisoner to ask for judgment against him in such a case. Yet he might thus be deprived of the protection of a previous valid conviction upon a second trial for the same offence, and *Page 184 possibly exposed after the termination of his sentence upon the second trial, to be arrested, sentenced and confined upon the first conviction.
The plea of autrefois convict must certainly be proved in part by a record. Lord HALE says the plea "consists of two kinds of matters: 1st, matter of record, namely, the former indictment and acquittal or conviction, and before what justices and in what manner; 2d, matter of fact, viz., that the prisoner is the same person, and the fact is the same." So Mr. Chitty says the plea must set forth the former record and aver the identity of the person and the offence. (1 Chit. Crim. Law, 463.) The rule, however, is mainly a rule of proof, and questions upon the character and sufficiency of the first conviction have arisen upon the record introduced. In Rex v. Parry (7 C. P., 836), the original indictment and minutes of the clerk of assize were received to prove an acquittal at the same sitting, upon the authority, as the presiding judge stated, of Horne Tooke's case (25 St. Tr.), in which similar evidence had been received of a conviction of other persons than the prisoner. In Rex v.Bowman (6 C. P., 101-337), when the conviction had been had at a former session, the proceedings were adjourned for several sessions, to enable the prisoner upon a second trial to take proceedings to compel the magistrates to make up a record.
It is, however, the result of all the English adjudged cases and the better construction of the authorities, that if judgment is stayed or suspended without affecting the conviction, as by the convict praying and obtaining benefit of clergy, this will not prevent the conviction being a bar to a second trial. And there is no doubt that if sentence upon the first conviction should be delayed or suspended for any cause other than error in the trial or insufficiency in the indictment, and the convict remained at all times exposed to its infliction, the conviction before judgment would sustain the plea of autrefois convict. In the case at bar the prisoner has indeed been decided not to be liable to the infliction of any sentence, but not for any cause connected with either the trial or the judgment, but by *Page 185 an obstacle created by legislative action solely. As to the proof in such a case, equally as when judgment had been pronounced, the conviction must be proved by the records of the court in which it was had, but there cannot, of course, be a record of judgment containing a sentence.
I confess, however, that this question does not assume to my mind the same importance in the present case, which was attached to it upon the argument. The pleas of the prisoner allege a trial, conviction and sentence, upon the same indictment to which she was now put to plead. They do not plead a judgment in terms, but they allege all the necessary and component proceedings and parts of a judgment. The replications, however, supply the defect if it be one, admitting and averring a judgment as well as a trial, conviction and sentence, in order to aver that such judgment and conviction have been reversed. The allegation in the replication is that the conviction, sentence, proceedings and judgment of the Oyer and Terminer, were reversed and annulled in the manner and for the cause specified. The demurrer of the prisoner admits this allegation of fact, and it therefore is a part of the record before us that the conviction as well as the judgment has been reversed, and if the character of that reversal is not such as to leave to the prisoner the benefit of the judgment upon the present pleas, it must have the same consequences as to the conviction. A reversal of the judgment for error in the proceedings, would necessarily import and involve the reversal of the conviction. So if this court had discharged the prisoner instead of ordering a new trial upon reversing the judgment for the causes stated in the opinion delivered on the former writ of error, the conviction must certainly have fallen with the judgment. It could not have been said to remain in force for any purpose, or to have any consequences against the prisoner, after the reversal of the judgment upon it.
The question presented by these demurrers upon the present branch of the case, in my opinion is, whether such a reversal of the judgment and conviction as is pleaded in the replications, *Page 186 prevents that conviction from being a bar to a subsequent trial. I do not, in this aspect of the case, any more than in the preliminary part of it, attach importance to the fact that a new trial was ordered by this court. The report of the case which is incorporated in and pleaded as part of the reply, states that a new trial was ordered because the court could not see judicially that the prisoner could not be convicted of manslaughter in this indictment. Whether this was so or not would not seem to have been carefully considered by the court, and the question would probably be reconsidered if it should become necessary. But as the record is now presented there is no plea of not guilty, and the prisoner confesses the crime of murder and avoids it by the special matter which she pleads. Both parties admit upon the record that the prisoner if convicted at all must be convicted of the offence of which she is indicted, and the single question presented by the demurrer is, whether the reversal of her previous conviction and sentence pleaded in the replication destroys the bar of such former conviction.
The law is laid down by the authorities that a former conviction to bar a second trial must be upon a sufficient indictment, and before a competent court. (2 Hawk. Pl. Cr., ch. 35, § 8; 2 Hale, Pl. Cor., 248.) In the case of The People v.Barrett (1 J.R., 66), the Supreme Court held that they would look into the first indictment and ascertain whether it would have sustained a conviction, and Chief Justice KENT said that if the first indictment was defective so that no good judgment could be given upon it, an acquittal upon such indictment would be no bar. In a case where judgment had been arrested on account of the insufficiency of the indictment, or where it had been reversed for error at the trial, it is open to no question that the prisoner might be tried again. And upon a reversal of a judgment rendered on the conviction of a prisoner, it would be a necessary presumption, nothing appearing to the contrary that the reversal was for error either in the indictment or at the trial, and in such case of course such conviction and judgment would no longer be in the way of a second trial. So in *Page 187 The People v. Casborus (13 J.R., 351), a plea of a former judgment in bar was overruled, on it appearing that the court which gave it had arrested judgment. But in the case at bar the record brings before us the fact that although the former conviction and judgment against the prisoner have been reversed, yet that such reversal was not for insufficiency in the indictment, nor for error at the trial, but for matter subsequent and dehors both the conviction and the judgment. The Court of Appeals expressly held, and the people and the prisoner both admit by these pleadings that the conviction of the prisoner, and the sentence and judgment which followed thereon, were valid and free from error when they were had and pronounced. The judgment of this court was simply that this judgment of the Supreme Court and the Court of Oyer and Terminer ought not to be executed. The court do indeed say that they reverse that judgment for error in the record. But this does not mean that the record discloses any error in itself, but that the judgment was found to be erroneous by applying to it the law as it then stood. In other words, it is reversed just as it would be arrested by the court which gave it, on the ground that its execution had by subsequent matter become unlawful or impossible. If the first judgment had been arrested for such a cause by the Court of Oyer and Terminer, as Judge DENIO intimates might have been done, and as was done in the English cases referred to in his opinion, no one could have said that such a judgment upon a valid trial and sentence would not have been a bar to a second trial, notwithstanding its execution was arrested. So in England when after judgment the offender prays his benefit of clergy and goes without sentence. In such cases the arrest, or suspension, or reversal, appears on the record to have been for causes which did not affect the conviction. The reversal in this court of the former judgment in this case is strongly analogous to the result of praying benefit of clergy in England in its consequences. The fact remains, notwithstanding it, that this prisoner has been tried, convicted and sentenced without error in the process, indictment, pleading and trial. As this appears from the *Page 188 record itself, I have no hesitation in saying that the replications were no answer to the pleas, and that the judgment of the Oyer and Terminer upon the demurrer to the first two replications was right.
It may be proper to add, that this opinion was prepared, and these views expressed, without the writer having been informed precisely of the reasoning by which the court reached its conclusions in the case of Shepherd v. The People. I have not been furnished with any copy of the opinion in that case, and it may be that what has now been said is merely a repetition of what has been already adjudged in that court. If so, the present decision may be placed more securely on the authority of that case. This woman by the record before us confesses herself guilty of murder. She has been duly and legally indicted, tried and convicted of the crime by a competent court, and there was neither insufficiency in the indictment nor error at the trial. If she has not suffered any punishment, and is not exposed to the infliction of any, it is due, not to anything done or omitted by the court or the jury which tried her, but to action on the part of the legislature so unexampled, as to leave the courts without a precedent by which to measure its consequences. She has once been in legal jeopardy of her life, and there is no power in the courts under the rule of the common law, and the injunction of the Constitution to compel her to stand in the like peril a second time. If it should be done in the present case to prevent a criminal from escaping altogether from punishment, a similar departure from the time-honored maxim of the law might in the next case visit the innocent and fairly acquitted with infamy, or redouble the penalty which the law inflicts upon offenders. There is no rule of public justice which commends itself more manifestly to conscience than that which forbids a man to be twice vexed for the same offence, and makes the result of a fair and lawful trial, be it conviction or acquittal, binding alike upon the accuser and the accused. As we have found no technical difficulty in the way of the application of that rule to this case, we are bound to declare that the conviction *Page 189 of the prisoner standing upon the record unimpeached in law or in fact, and only arrested by subsequent action of legislative power, is a bar to any subsequent trial for the same offence.
Having reached this conclusion, it is unnecessary for me to determine the effect of the repeal of the statute of 1860, and the passage of that of 1861, as set up in the third plea and replication, and I shall not enter upon the consideration of that question.
The judgment of the Supreme Court should be reversed and that of the Oyer and Terminer affirmed, and the prisoner discharged.