AUTREFOIS ACQUIT - The Law Mind Legal Dictionary

AUTREFOIS ACQUITAuthored

The Law Mind • 1152 words

Definition

A plea in bar in criminal proceedings by which a defendant asserts that they have previously been tried and acquitted of the same offense for which they are now charged. When successfully raised, the plea operates as a complete bar to the current prosecution, preventing the case from proceeding to trial.

The plea is one of two companion pleas — the other being autrefois convict — that together give formal procedural expression to the double jeopardy principle: that no person may be tried twice for the same offense. Where autrefois acquit applies, the prior acquittal is treated as conclusive, and the prosecution is barred regardless of any new evidence or changed circumstances.

To succeed, the defendant must establish: (1) a prior proceeding in a court of competent jurisdiction; (2) a valid acquittal on the merits; and (3) that the offense now charged is the same, or substantially the same, as the offense of which the defendant was acquitted.

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Common Confusion

AUTREFOIS ACQUIT / AUTREFOIS CONVICT / DOUBLE JEOPARDY

These three terms are frequently used interchangeably but operate at different levels. Autrefois acquit and autrefois convict are the specific common law pleas in bar — procedural vehicles a defendant formally enters in response to a new indictment. Double jeopardy is the underlying constitutional and common law principle that gives both pleas their force. In American practice, the constitutional protection under the Fifth Amendment has largely absorbed and displaced the formal plea structure, but in English and Commonwealth jurisdictions the pleas retain distinct procedural significance. Researchers working in historical materials must be careful: a source discussing the "plea of autrefois acquit" is describing the procedural mechanism; a source discussing "double jeopardy" may be addressing the broader constitutional doctrine without engaging the plea's technical requirements.

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Core Elements

The following elements are required to sustain a plea of autrefois acquit:

PRIOR ACQUITTAL: The defendant must have been formally acquitted — found not guilty — in the prior proceeding. A dismissal for procedural reasons, a mistrial, or a conviction that was later overturned on appeal does not automatically satisfy this element; whether such outcomes trigger the bar depends on jurisdiction and context.

COURT OF COMPETENT JURISDICTION: The prior proceeding must have been conducted by a court with proper authority to try the offense. An acquittal by a court lacking jurisdiction over the subject matter does not ground the plea.

IDENTITY OF OFFENSE: The offense charged in the current indictment must be the same offense for which the defendant was previously acquitted. Courts have applied varying tests to determine identity of offense, including whether the same evidence would sustain both charges, and whether the offenses share the same essential elements.

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Why It Matters in Research

This term sits at the intersection of pleading practice and constitutional doctrine, which creates two distinct research tracks that are easy to conflate.

In historical common law sources — particularly English and early American materials — autrefois acquit is primarily a pleading concept. The focus is on how the plea is formally interposed, what the defendant must allege, and how the court adjudicates it. Researchers working in pre-twentieth-century American sources will find it treated as a distinct formal plea with its own rules of construction, separate from broader discussions of double jeopardy.

In modern American practice, the formal plea has been largely subsumed into Fifth Amendment double jeopardy analysis. Courts and practitioners routinely discuss the protection without invoking the Latin terminology, which can make historical plea doctrine difficult to locate using modern search terms. Researchers should run both "autrefois acquit" and "double jeopardy" as parallel searches when working across historical and contemporary sources.

The identity-of-offense requirement has a particularly complex doctrinal history. The test for whether two offenses are "the same" has shifted across jurisdictions and eras. English and early American sources may apply a different standard than modern American constitutional doctrine, and a research error here can produce a misleading picture of what the plea covered at any given period.

In Commonwealth jurisdictions — particularly England, Canada, and Australia — autrefois acquit retains active procedural use and is not simply a historical curiosity. Researchers doing comparative work must be attentive to this divergence.

The Bouvier entry explicitly connects the plea to the Fifth Amendment, a useful reminder that American treatise writers understood the constitutional provision as a restatement of the common law rule rather than an innovation. This framing has implications for originalist and historical constitutional research.

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Historical Dictionary Support

The four source dictionaries converge on the core definition without significant disagreement: autrefois acquit is a plea in bar asserting a prior acquittal for the same offense. All four identify it as a common law doctrine predating constitutional codification.

Burrill is the most analytically precise of the four, articulating the underlying maxim — that no man shall be brought into jeopardy more than once for the same offense — as the foundation from which the plea follows as a logical consequence. This grounding in common law maxim rather than statute is historically significant and appears across all four dictionaries, though most explicitly in Burrill.

Bouvier provides the constitutional anchoring, linking the plea to the Fifth Amendment and characterizing that amendment as a "re-enactment" of the common law rule. This is a notable editorial position: Bouvier treats the constitutional provision not as the source of the protection but as a codification of a preexisting common law right. Researchers working on constitutional history will find this framing relevant.

Black's and Rapalje & Lawrence are serviceable but thinner, offering definitional coverage without the analytical depth of Bouvier or Burrill. The Rapalje & Lawrence entry appears to contain textual corruption in the digitized source — the entry shifts mid-sentence into unrelated material about compelling obedience to judicial orders, suggesting an OCR or transcription error that should not be treated as authoritative content.

None of the four dictionaries address the identity-of-offense test with any precision, nor do they engage the procedural distinctions between a formal plea of autrefois acquit and a constitutional double jeopardy motion — a gap that reflects the state of doctrine at the time of their composition rather than a deficiency in coverage.

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Jurisdictional Note

In the United States, the doctrine is governed primarily by the Double Jeopardy Clause of the Fifth Amendment and its state constitutional counterparts; the formal Latin plea is rarely entered by that name in modern American courts. In England and many Commonwealth jurisdictions, autrefois acquit remains a recognized formal plea with distinct procedural rules. Researchers should not assume that American double jeopardy doctrine maps directly onto the common law plea, particularly regarding the identity-of-offense test and the consequences of acquittal by a court later found to lack jurisdiction.

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AUTREFOIS ACQUITmain

Black's Law Dictionary • 1891

In criminal law. Formerly acquitted. The name of a plea in bar to a criminal action, stating that the defendant has been once already indicted and tried for the same alleged offense and has been acquitted.

AUTREFOIS ACQUITmain

Bouvier's Law Dictionary • 1928

In Criminal Pleading. A plea made by a defendant indicted for a crime or mis- demeanor, that he has formerly been tried and acquitted of the same offence. The constitution of the United States, Amend. art. 5, provides that no person shall be subject for the same offence to be put twice in jeopardy of life or limb. This is simply a re-enactment of the common- law provision. The same provision is to be found in the constitution of almost all if not of every state in the Union, and if not in the constitution the same principles are probably declared by legislative act; so that they must be regarded as fundamental doctrines in every state; 2 Kent 12. See 5 How. 410; 9 Wheat. 579; 2 Gall. 364; 2 Sumn. 19; 2 McLean 114; 4 Wash. C. C. 408; 9 Mass. 494; 2 Pick. 521; 2 Johns. Cas. 301; 18 Johns. 187; 5 Litt. 240; 1 Miss. 184; 4 Halst. 256. See, however, 6 8. & R. 577; 1 Hayw. 241; 13 Yerg. 583; 16 Ala. 188; Whart. Crim. Pl. § 490. The court, however, must have been com- petent, having jurisdiction and the pro- ceedings regular; Whart. Cr. Pl. § 488; 29 Tex. App. 48; 91 Ky. 200; but see 89 Ala. 172. To be a bar, the acquittal must have been on trial; 5 Rand. 669; 11 Ν. Η. 156; 4 Blackf. 156; 6 Mo. 645; 5 Harr. Del. 488; 14 Тех. 260; see 1 Hayw. 241; 14 Ohio 295; and by verdict of a jury on a valid indictment; 4 Bla. Com. 335; 1 Johns. 66; 1 Va. Cas. 312; 6 Ala. 341; 4 Mo. 376; 26 Pa. 513; 6 Md. 400; 39 Mo App. 187. In Pennsylvania and some other states, the discharge of a jury, even in a capital case, before verdict, except in case of absolute necessity, will support the plea; 3 Rawle 498; 80 N. C. 377; but the prisoner's con- sent to the discharge of a previous jury is a sufficient answer; 15 Pa. 468. In the United States courts and in some states, the separation of the jury when it takes place in the exercise of a sound discretion is no bar to a second trial; Whart. Cr. Pl. §499; Clark, Cr. Law 373; 126 Ind. 71: 143 U. S. 148; as where the jury is discharged because of the sickness of a juror; 85 Cal. 383; 2 N. D. 521; see 91 Ga. 831; or because they failed to agree; 144 U. S. 263; 111 N. C. 695. There must be an acquittal of the offence charged in law and in fact; 1 Va. Cas. 188, 288; 5 Rand. 669; 13 Mass. 457; 2 id. 172; 29 Pa. 323; 6 Cal. 543; 82 Wis. 571; but an acquittal is conclusive; 6 Humphr. 410; 3 Cush. 212; 16 Conn. 54; 7 Ga. 422; 8 Blackf. 533; 3 Brev. 421; 6 Mo. 644; 7 Ark. 169; 1 Bail. 651; 2 Halst. 172; 11 Miss. 751; 3 Tex. 118; 1 Denio 207. See 1 N. H. 257. If a nolle prosequi is entered without the prisoner's consent after issue is joined and the jury sworn, it is a bar to a subsequent indictment for the same of- fence; 85 Ga. 570; but the jeopardy does not begin until the jury is sworn, prior to that a nol. pros. may be entered without prejudice; 43 La. Ann. 514; a nol. pros. of two of three indictments is no bar to a prosecution under the third; 91 Ala. 25. In Missouri the conviction of murder in the second degree, under an indictment for murder in the first degree, constitutes no bar to trial and conviction for murder in the first degree, upon new trial, when first verdict has been set aside; 89 Mo. 312. Proceedings by state tribunals are no bar to court-martial instituted by the military authorities of the United States; 3 Opin. Atty.-Genl. 750; 6 id. 413; but a judg- ment of conviction by a military court, established by law in an insurgent state, is a bar to a subsequent prosecution by a state court for the same offence; 97 U. S. 509. The plea must set out the former record, and show the identity of the offence and of the person by proper averments; Hawk. Pl. Cr. b. 2, c. 36; 1 Chit. Cr. L. 463; 16 Ark. 568; 24 Conn. 57; 6 Dana 295; 5 Rand. 669; 17 Pick. 400. The true test by which the question, whether a plea of autrefois acquit or autre- fois convict is a sufficient bar in any par- ticular case, may be tried is, whether the

AUTREFOIS ACQUITmain

Rapalje & Lawrence • 1888

- Formerly acquitted. A plea in bar to a criminal prosecution, to the effect that the prisoner has been already tried for the same offence, upon an officer, (e. g. a judge), to compel before a court of competent jurisdiction, obedience to his commands or orders lawfully promulgated. AUTHORITY, (coupled with an interest). 10 Pet. (U. S.) 564. (in a statute). 3 Sandf. (N. Y.) 137. (judicial, exercise of). 1 Day (Conn.) 328; 2 Chit. Gen. Pr. 153; 2 East 244; 8 Id. 319; 8 T. R. 454. (of agent of corporation). 3 Wheel. Am. C. L. 448. & R. (Pa.) 166. (of arbitrators). 6 Mass. 46; 6 Serg. (of commissioners in bankruptcy). 2 W. Bl. 1141. (of executors, to sell). Co. Litt. 112b, 113a; 15 Wend. (N. Y.) 610. (of a justice of the peace out of commission). 2 Green (N. J.) 26. 5 Binn. (Pa.) 481. (of majority of road commissioners). (revocation of). 3 Halst. (N. J.) 116. (to arbitrators, by submission). 1 Wheel. Am. C. L. 433. 345. (to borrow money). 2 Pick. (Mass.) (to executors, by devise). 3 Day (to overdraw, distinguished from "per- (Conn.) 385. mission"). 32 Barb. (N. Y.) 68. (Pa.) 69. (to sell land). 6 Cranch (U.S.) 87. (to sell land, in a will). 3 Binn. (used in the sense of "obligation"). 20 Md. 449, 468. AUTHORITY TO SEVERAL, (to contract.) 12 Mass. 189, 194. (how exercised). 6 Johns. (N. Y.) 39; 21 Wend. (N. Y.) 178, 211; 23 Id. 324;5 Binn. (Pa.) 481; 1 Bay (S. C.) 354; 1 McCord (S. C.) 60; 9 Barn. & C. 648; 1 Bos. & P. 229; 1 Dow. & Ry. 259; 9 East 246; 1 Str. 117; 3 Т. R. 38, 380, 592; 2 Vern. 514; 19 Ves. 463;2 W. Bl. 1017; Yelv. 27. (judicial). Coxe (N. J.) 144; 1 Green (N. J.) 268. AUTHORIZE, (in charter of corporation). 12 Wheat. (U. S.) 52. AUTHORIZED AND EMPOWERED, (agent of corporation, to sell real estate). 3 Wheel. Am. C. L. 450. (directors of company, to appoint agents). 7 Conn. 219. (in a statute). 56 Barb. (N. Υ.) 452. (in a will). 5 Ves. 506.

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