People v. Benjamin , 2 Park. Cr. 201 ( 1855 )

By the Court, Parker, J.

It is apparent in this case that the trial before Esquire Winne, was carried on more for the benefit of the defendant than of the public. The injured person was not complainant, but was a very reluctant witness, and his counsel objected to the whole proceeding. It was evidently an attempt to get off the defendant with a very light punishment for a very atrocious offence. But it failed of its object.

Under the plea of not guilty, the defendant had no right to prove a former trial and sentence, nor even that a proceeding was then pending before a different tribunal for the same of-fence. (Arch. Cr. Pl. 92, 94.) The rule is that under a plea of not guilty, the defendant may give in evidence everything which negatives the allegations in the indictment or complaint and all matters of excuse or justification. Where a defendant wishes to avail himself of a former trial and judgment, he must plead auterfois acquit or auterfois convict, as the case may be.

In this case the defendant pleaded not guilty, and the cause was tried upon that issue alone. If, after the joining of issue, any thing occurred which might be available as a defence, the defendant could only avail himself of it by a subsequent plea, and by presenting a new issue for trial. That was not done, and the evidence of the trial and sentence before Esquire Winne, was properly excluded upon the merits.

We think the objection to the species of evidence, by which the facts were offered to be proved, was also well taken. The record of conviction, if it had been filed, or a duly certified copy of it, would have been the proper evidence. (2 R. S. 717, § 38,39, 40.) If it had been shown that no record of conviction had been filed, the secondary evidence might have been received. (2 R. S. 739, § 10: Barb. Cr. L. 407, 2d ed.)

The judgment must be affirmed.