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An acquittal of the appellee on the merits was a bar to an indictment; and, on the other hand, when an appeal was fairly started, although the appellor might fail to prosecute, or might be defeated by plea, the cause might still be proceeded with on behalf of the king. /1/ The presentment, which is the other parent of our criminal procedure, had an origin distinct from the appeal.
The appellor also had to show that he immediately raised the hue and cry. It was only at a later day, and after argument, that trespass was extended so as to embrace harms which were foreseen, but which were not the intended consequence of the defendant's act. /2/ Thence again it extended to unforeseen injuries. /3/
The Mirror, c. 1. § 8. says, 'Ardours sont que ardent cilie, ville, maison home, maison beast, ou auters chatelx, de lour felonie en temps de pace pour haine ou vengeance. Again, c. 2. § II., pointing oul the words of the appellor 'jeo dise que Sebright, &c. entiel meas. on ou hiens mist de feu. Coke, 3 Inst. 67. says, 'The ancient authors extended this felony further than houses, viz. to stacks of corn, waynes or carts of coal, wood, or other goods. He defines it as commissibie, not only on the inset houses, parcel of the mansion-house, but the outset also, as barn, stable, cow- house, sheep-house, dairy-house, mill-house, and the like, parcel of the mansion house. But 'burning of a barn, being no parcel of a mansion-house, is no felony, unless there be corn or hay within it.
Glanvill says that wounds are within the sheriff's jurisdiction, unless the appellor adds a charge of breach of the king's peace. /2/ Yet the wounds are given vi et armis as much in the one case as in the other.
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