#### STATE *vs.*HARDY CARROLL.

When, upon a conviction for a elergiable offence, the defendant prays the benefit of clergy, and the Attorney General or Solicitor for the State objects, upon the ground that the prisoner has before had the benefit of clergy allowed him, he must present this objection in the form of a counterplea in writing.

This was an appeal by the Attorney General from the judgment of the Superior Court of Wake county, at the Spring Term, 1842, his Honor Judge Settle presiding. *258The following case was presented by the record. The prisoner was indicted for, and convicted of, grand larceny. The Attorney General having moved for judgment, the Judgede-man¿¡ed 0f tile said Hardy Carroll, the prisoner, what he had to say why sentence oí death should not be pronounced against him, whereupon the prisoner, through his counsel, craved the benefit of his clergy; upon which it was suggested, by the Attorney General that the prisoner had before been convicted of a grand larceny and felony, and had then extended to him his clergy, apd, as such, was not entitled to it the second time, and offered to the court the original records, shewing the former conviction, and the fact of the prisoner’s then having had the benfit of his clergy. It was objected by the prisoner’s- counsel that there should be a counterplea in writing,, and that it should set forth the former indictment, verdict and judgment, and that the objection could not be received *ore tenus,*as the prisoner had a right to reply *mil tiel record.,*and that he was not the same person, and had a right to a- trial by a jury as to his identity. The court, being of this opinion, sustained the prisoner’s objection to the *ore ienus*suggestion of the Attorney General, and allowed him his clergy, and thereupon pronounced the following judgment, to wit, that the prisoner be twice publicly whipped, and receive at each of the said whippings thirty-nine lashes on his bare back. Whereupon the Attorney General prayed an appeal to the Supreme Court *from*the judgment of the court, extending to the prisoner the benefit of clergy, which appeal was allowed by the court.

*J. H- Bryan*(by appointment of the court) for the State.

The suggestion of the Attorney General, though not in strict form, contained all that was necessary in a counterp^a, if filed in writing. A connterplea drawn out in form need not set forth the former indictment with precision. 1 Chit. Crim. L. 472. If' informal, the prisoner should have demurred for want of form, or moved to set it aside. The court had no right to. pronounce it a nullity.

*Attorney General*on the same side.

The writers on criminal law say that the *Attorney General*may, not *259that he *shall, file*a counterplea in writing. The prisoner claims his benefit .of clergy *ore tenns.*Why should not the Attorney General reply in the same manner? When this prayer of the prisoner and this suggestion of the Attorney General are entered on the record, every thing is there, necessary to authorize the court to pronounce its judgment. What advantage could the prisoner have had if the counterplea had been in writing, which he had not in this proceeding? It has not been the practice in North Carolinato file such a plea in writing. — no precedent is to be found of such a plea in writing in this State.

*■Badger*(who appeared for *Saunders,*counsel below for the prisoner) for the defendant.

It is clear that all matters •of fact, upon which any demand is to be supported or repelled, must by proper pleading be alleged upon the record, in order that, when admitted, the court may pronounce judgment thereupon, or, when denied, its truth may be tried in •the manner required by law. If this is not so, when the matter set up is -in bar of the claim of clergy, it is an exception which must be proved. But there is no such exception. See *Rex v Scott*& al., 1 Leach’s Crown Cases 401 (new edition) in which the whole mode of proceeding is set out'. In the same case reported in the old edition of Leach 341, the form of replication and issue will be seen. See also *Bean’s case,*1 Leach 470' (new edition,) 409 (old edition.) *State v Allen,*3 Hawks 614. 1 Chitty’s Grim. Law 472, 473, where it is said, if no counterplea be filed clergy is allowed of course. This mode of proceeding obtains in other ■cases: As, to oust a person convicted &c. of an act of general pardon, there must be a counterplea to his prayer. *Regina*v *Arundell,*1 Tremaine’s PI. C. 272. So to wager of battle. 1 Tremaine’s PI. C. 33. So to plea of non-identity on attainder removed into the King’s Bench. Appendix to ■4th Black. Com.

Daniel, J.

The prisoner was convicted of grand larceny. When he was brought up for judgment, he prayed the benefit of clergy. The prayer was resisted on behalf of the •State, and the Attorney General offered to read to the court *260the record of a prior conviction for the same offence, when ^ie Prisoner had once betore been allowed his clergy. The court refused to hear, in this way, the evidence of a former conviction and allowance of clergy. We are of opinion that the court acted correctly. When the benefit of clergy is demanded by a prisoner, who can only once receive it, and the prayer is entered on the *record, the State*may file a *counterplea,*stating that he has had it before, in order to bar his present claim. But where no *counterplea*is filed, clergy is allowed of course. 1 Chitty’s Crim. L. 688, 689, (Amer. Edit.) The counterplea always recites the record of the prior conviction — the prayer of clergy — and the allowing of the same by the court; and then it makes an averment that the prisoner is the *same person*who was so convicted, and no other or different person; and the plea concludes with a prayer, that the prisoner receive judgment *to die*according to law. To such a counterplea the prisoner may reply *nul tiel record,*and also deny that he is the person named in the said record. *Scott’s case,*1 Leach’s C. Cases, 402, 403, (4th Edit.) If the State was not compelled to counterplead on the record, the prisoner would be unable to put in his replication and make up an issue as to his identity, to be submitted to a jury, which he is entitled to by law. It is, therefore, not admissible for the Attorney General to counterplea *ore tenus*at the bar; the plea should be filed in writing. The form of such a plea may be seen in *Scott’s case,*cited above. The judgment must be affirmed.

Per Curiam, Judgment affirmed.