R v Birchenough and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | High Court of Chancery |
English Reports Citation: 168 E.R. 1351
LINCOLN'S INN
S C. 7 C & P. 575, sub nomine R v Plant & Birchenough. Referred to, R. v Ollis, [1900] 2 Q B. 758.
1836. E,EX V BlRCHENOUOH AND ANOTHER (An acquittal on an indictment for having been present aiding and abetting in a felony, is no bar to indictment, charging the party as accessary before the fact) [S C. 7 C & P. 575, f ub nomine R v Plant & Birchenough. Referred to, R. v OUi*, [1900] 2 Q B. 758.J Louisa Plant was indicted and tried at the Summer Assizes 1834, at Chester, before Lord Denman C. J , for the wilful murder of her child, and Thomas Birchenough for having been present aiding and abetting her in the said murder. She was found guilty ; he was acquitted They were arraigned on a second indictment, in which she was charged with the murder, he as an accessary before the fact He pleaded autrefois [478] ucquit, referring to his acquittal on the first indictment The prosecutor demurred , and on argument, the learned Lord Chief Justice thought the plea bad, and directed the prisoner to plead to the indictment, but reserved the, point The prisoner, as well as Louisa Plant, pleaded Not Guilty, and both were tried, and found guilty The question submitted to the learned Judges was, whether the plea of autrefois acquit waa good. 1st Hales Pleas of the Crown, 626, and 2d vol 244 ; Rex v Russell, supra, 356 ; Rex v. Gray (corarn Coleridge J ), 7 C & P. 164. This case was argued in Michaelmas Term, 1836, before all the Judges (except Park J), by Cottingham for prisoner. The acquittal in the former case is a bar to this indictment. There are strong authorities in support of this position in 1 Hale's P. C. 626. It is expressly laid down " that if A be indicted as principal and acquitted, he shall not be indicted as accessary before, and if he be, he may plead his former acquittal in bar, for it is in substance the same offence And Stamforde and several other ancient authorities are cited ; the distinction there taken, is between accessaries before, and accessaries after the fact. And the same doctrine is repeated in 2 Hale, 224 In Foster's Crown Law, p. 361, the same doctrine is laid down, though the passage commences with " It seemeth to be agreed, upon what grounds I know not," and it is true that the author goes on to give reasons against the doctrine, though he admits it to be law The doctrine is carried on and adopted by Hawkins, b. 2, c 35, s. 11, where, after saying that...
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