acquittal, for he was convicted in the court below; nor can he plead former conviction for it was set aside and a new trial granted. Rhodes, 112-857.

A plea of both former acquittal and not guilty may be entered, but the jury cannot try the issues raised at the same time, and after a verdict against defendant on a plea of former acquittal the trial should then proceed on the plea of not guilty. Respass, 85-534.

The record of a former conviction or acquittal is the best evidence, and must be produced or its loss shown. Chancy, 110-507.

A person may be convicted for an assault and battery convicted in the presence of the court, though he had previously been fined for contempt of court in doing the same act, since the same act constitutes two offences, one against the court, and the other against the public peace. Yancey, 4 (Repos. & Tay. T.), 133.

A defendant may plead both former acquittal and not guilty, but the jury cannot try the issues raised at the same time. After verdict against defendant on the plea of former acquittal, the court should proceed to trial on that of not guilty. Respass, 85-534.

Where defendant fires his gun at a crowd of eighteen or more persons and two persons are hit, an acquittal on an indictment charging an assault and battery on one of the persons hit, is no bar to a prosecution for the same offence committed on the other, since an indiscriminate assault upon several persons is a distinct assault on each. Ashe, J., dissenting. Nash, 86-650.

When defendant, after learning of an indictment against him in the superior court for assault and battery but before being arrested, procures himself to be indicted in the county court and there voluntarily submits and is fined, the plea of former conviction is good against the indictment in the superior court. Casey, 44 (Busb.), 209.

In order to show the identity of the cases, it is competent for defendant to prove by one who was not a witness on the former trial what a witness who was examined on behalf of the state on that trial deposed to, though such witness is still alive and within the county. Smith, 33 (11 Ired.), 33. Where an assault and battery is committed in a riot, on indictment for the riot a plea of former conviction for the assault and battery will operate as a bar to the indictment for the riot, since the state cannot divide an offence consisting of several trespasses into as many indictments as there are acts of trespass. Ingles, 3 (2 Hay. Rep.), 148.

Where two are indicted for an affray, and one pleads former conviction, which plea is tried before the plea of not guilty, the other defendant has never been in jeopardy, and may be tried for the offence. Weaver, 93-595.

Conviction for a riot is a bar to a prosecution for an assault committed in the riot, and which was given in evidence on the trial for the same. Lindsay, 61 (Phil. Law), 468.

Where the defendant in a warrant for bastardy. having agreed upon terms of settlement with the prosecutrix, paid the costs and the justice who issued the warrant burned the papers and did not docket the warrant or other proceedings or render any judgment and the defendant was discharged: Held, that such facts did not establish a case of former trial and conviction, or bar a subsequent prosecution for the same offence. Robertson, 122-1045.

An acquittal upon an indictment for burglary and stealing goods is not a good plea to a second indictment for the same burglary with intent to steal, since upon the first indictment defendant could not have been convicted upon proof of an intent to steal. Jesse, 20 (3 D. &. B.), 98.

A conviction for assault with a pistol will not sustain a plea of former

conviction in a subsequent trial for carrying the pistol concealed. Robinson, 116-1046.

A mistrial in a case not capital is a matter of discretion, and a plea of former jeopardy because of a mistrial ordered on a former trial of a defenuant for the same offence cannot be sustained. Collins, 115-716.

A single act may be an offence against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt defendant from prosecution and punishment under the other. Robinson, 116-1046.

Where defendants are bound to keep the streets of a town in repair, and if several streets are presented the same day, a conviction on one, where separate bills are found, may be pleaded in bar of the others. Commissioners, 6 (2 Murph. ), 371.

Where, on motion in arrest of judgment, the court sets the verdict aside and a new trial is had upon another bill, a plea of former conviction cannot be sustained, since if the first indictment was so defective as to warrant arrest of judgment the defendant cannot be considered as having been in jeopardy. Lee, 114-844.

On indictment for forcible entry a plea of former acquittal for forcible trespass for the same transaction is good., Lawson, 123-740.

Where a plea of former acquittal is sustained, no appeal can be taken by the state, although such plea is a mixed question of law and fact, and the court erred in not submiting it to the jury. Lane, 78-547.

FORMER JEOPARDY.

FORMER JEOPARDY-DISCHARGE OF PRISONER.-In a case where three persons were on trial for murder, the prisoners proposed that they should be examined as witnesses for each other. The state objected, but the court allowed the motion, and thereupon the solicitor appealed, and the court to allow him such appeal, against the objection of the prisoners, withdrew a juror and made a mistrial: Held, to have been an erroneous exercise of discretion, and that thereupon the prisoners were entitled to a discharge. Prince, 63-529.

Where the judge is absent from the court and telegraphs the clerk to withdraw a juror, make a mistrial and discharge the jury, and the clerk does so, the prisoner is entitled to be discharged. It is the duty of a judge to be personally present in court, and to find judicially the facts upon which his conclusions are based. Jefferson, 66–309.

Where the court orders a mistrial on the ground that one of the jurors has fraudulently procured himself to be selected at the instance of the prisoner to secure an acquittal, there has been no jeopardy, and an order remanding the prisoner for another trial is proper. Bell, 81 591.

The discharge of a jury before verdict in a capital case, on Monday of the second week of the term and before the term expired, after a deliberation of forty-five hours, is erroneous, and entitles the prisoner to his discharge. Alman, 64-364.

Where a juror is withdrawn and a mistrial ordered, the prisoner may be put to a second trial upon the same bill. Washington, 90—664.

The jury were out considering their verdict for ten days, but came into court twice, and, being polled each time, declared they would never agree,

and the court directed a juror to be withdrawn and a mistrial entered: Held, no error, and that the prisoner had never been in jeopardy. Carland, 90-668.

Where the jury returns an insensible verdict it is proper for the court to instruct them again, and where upon further instruction they fail to agree from Tuesday to Saturday night, when the term would expire, an order of mistrial is proper. Whitson, 111-695.

FORNICATION AND ADULTERY.

Sec. 177 (1041). Fornication and adultery. R. C., c. 34, s. 45. 1805, c. 684.

If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.

INDICTMENT.-An indictment which alleges that defendants "did unlawfully and adulterously bed and cohabit together," is sufficient without an averment that they were not married, or that they were male and female, since the averment of the adulterous intercourse implies the absence of the marriage relation and also implies that the parties are of different sexes. Lashley, 84-754.

An indictment which charges that defendants, not being united in marriage "unlawfully did associate, bed and cohabit together, and then ad there did commit fornication and adultery," is sufficient, since the language used must imply that they did "lewdly and lasciviously associate." Stubbs, 108 774.

An indictment charging that defendants "did unlawfully and adulterously bed and cohabit together, and then and there did unlawfully commit fornication and adultery," is sufficient. Tally, 75-322.

The indictment need not allege that either of the defendants had ever taken the other into his or her house and that they had lived together. Jolly, 20 (3 D. & B.), 110.

Judgment cannot be arrested because one of the defendants, a married woman is described as "spinster." Guest, 100-410..

EVIDENCE. The evidence was that the male defendant, an orphan and a cripple, when ten years old went to live with one H, with whom the female defendant resided; that she assisted in caring for him, and at H's death both defendants moved to another place and have since lived together in a house in which there were three beds; that they are aged, the male 23, the female 50 years; and a witness testified that he went there one morning at 4 o'clock and saw the female in one bed, the other beds in the room not tumbled, and the male was up and dressed, but witness did not know where he staid that night. It was not shown that there was but one room in the house: Held, that the evidence was not sufficient to warrant a verdict of guilty. Waller, 80-401.

Defendant denied his guilt and swore that he was surprised at the charge when he first heard of it, and that his wife had never made such a charge or referred to it: Held, that it was competent to prove by a witness defendant's admission that he did know of the charge prior to the time to which he had sworn, and that he had been charged by his with the offence. Crane, 110-530.

Where various independent circumstances are relied on by the state, an instruction that the jury must be satisfied upon the whole evidence is sufficient. Crane, 110-530.

Evidence was offered tending to prove that the male defendant, white, and the female defendant, colored, had several times been seen riding together in the male defendant's vehicle; that they frequently ate at the same table; that the female defendant, who was a married woman, but who had left her husband, had given birth to two children after separating from her husband; that the male defendant had been seen nursing and playing with them, and had his picture taken with theirs, and that the female de fendant employed servants for both: Held, sufficient to warrant a conviction. Chancy, 110-507.

More than two years before the indictment the male defendant was seen taking very indecent liberties with the female defe uant, a id she, on being remonstrated with, said in the presence of the other defendant, "it was pretty much as they had done." There was evidence that they lived half a mile apart, and they continued to associate with each other after the act described for a year, in which time the male defendant visited her house often twice a week: Held, that the evidence was sufficient to be submitted to the jury. Dukes, 119-782.

Evidence of facts transpiring after the finding of the bill and tending to show guilt is admissible. Roby, 121-682.

Where evidence of adulterous intercourse in another county is shown in connection with evidence of such acts in the county in which the action is tried, the defendants cannot be convicted for the acts committed in another county, and a failure of the judge to so charge upon request, is error. Beard, 124-811.

While evidence of an act of illicit intercourse occurring more than two years before the indictment is not competent as substantive testimony, it may be considered, if believed, as corroborative evidence of subsequent association. Dukes, 119-782.

Evidence that defendants were seen working together in a field, although slight, is competent as tending to show, with other circumstances, that defendants are living together in adultery. Roby, 121-682.

Evidence that defendants lived together about three months before they were married and had prior to that time moved to a distant place and had returned is sufficient to be submitted to the jury. Roby, 121-682.

A photograph of defendant was introduced, on the back of which, signed with his name, were words purporting to be a marriage to his wife and indicating that the one to whom the message was addressed was married, and the alleged wife, the prosecutrix, testified that the writing was that of the defendant and that the photograph had been sent to her: Held, that such writing was admissible as an acknowledgment of marriage. Behrman, 114-797.

A paper writing purporting to be a contract of marriage, and to be signed by the contracting parties at the time of the alleged marriage, is admissible, not only in corroboration of a witness who testified to the facts, but also as substantive evidence to prove the marriage. Behrman, 114-797. Where the material issue was whether the prosecuting witness and defendant were married in a foreign country, a certificate by the officiating rabbi, attesting the marriage and certified by the signature and seal of the

official minister of such foreign country, although inadmissible as a record or an independent declaration of the rabbi, it was competent as part of the res gestae to support the testimony of the prosecuting witness as to the fact of the marriage. Behrman, 114-797.

Evidence that the female defendant told a witness for the state, before the indictment, that her brother had driven her away from home, and that her father had paid the male defendant, who had married her cousin, to take her on his farm as a work-hand, is inadmissible, since what a party says exculpatory of himself after the offence was committed, and not part of the res gestæ, is not evidence for him. Stubbs, 108-774.

After much evidence tending to prove the unlawful relations of the defendants had been introduced, a witness testified that he met the male defendant one night within a short distance of the female defendant's house, going in that direction, when defendant said he was going to another place, and that on a subsequent investigation of the matter before a local society he denied making such a statement: Held, that the evidence was competent as corroborative of other testimony of visits to the female's residence. Austin, 108-780.

A witness who testifies that he has often seen defendant write, and knows his handwriting, is competent to express an opinion as to whether a letter in controversy was written by defendant. Gay, 94 814.

It is not competent to ask a witness, with a view to discredit him, whether he had ever had sexual intercourse with any woman except his wife since his marriage. Ib.

It is not error for the judge in charging the jury to say to them that the testimony of a witness who proves a good character, is entitled to more weight than the testimony of one who is shown to be of a bad character. Ib.

A capias with the return "not to be found," cannot be introduced in evidence for the purpose of proving the flight of the defendant in the absence of any evidence that he resided in the county to which the capias was issued. Jones, 93-611.

Evidence that defendants had been seen driving together since the prosecution began is admissible, in connection with other evidence, going to show their lascivious association within two years prior to the beginning of the action. Stubbs, 108-774.

Where there is no evidence that the female defendant is a single woman, or that she is not defendant's wife, or that her child, born while she lived at defendant's house, is a bastard, the evidence is insufficient to be submitted to the jury. Pope, 109—.

Evidence that the male defendant has heard the feme defendant's father order her to leave his house, and that he had seen letters from her father and brother declaring she could not stay at her father's house, is of slight importance, and the exclusion of the evidence in reference to the letters only is too slight to constitute ground for a new trial, since mention of the letters was simply cumulative. Stubbs, 108-774.

On cross-examination of a state's witness, defendants proposed to ask him if he had not been prompted to swear against defendants by B, who had not been examined as a witness; the court permitted the question to be put omitting B's name: Held, that while the inquiry was unobjectionable, yet as it did not seem to be material, and it did not appear that defendants were prejudiced by its rejection, a venire de novo would not be granted. Sidden, 104-845.

A physician testified that the male defendant employed and paid him to attend the female defendant when sick, alleging that she was related to him: another witness testified that on several nights while she was sick he saw the male defendant at her house, and more than once on the bed with her with his clothes on; a third witness testified that, as a policeman, he