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Entered according to act of Congress, in the year one thousand eight hundred and forty-one,

in the clerk's office of the district court of the northern district of New York.

Entered according to act of Congress, in the year one thousand eight hundred and fifty-two,

in the clerk's office of the district court of the northern district of New York.

Entered according to act of Congress in the year one thousand eight hundred and seventy-nine,

in the clerk's office of the district court of the northern district of New York.

Entered according to act of Congress, in the year one thousand eight hundred and eighty-three,

in the clerk's office of the district court of the northern district of New York.

Printers, Electrotypers and Binders,

Albany, N. Y.

Chap. 7.]




[ * 348 ]



When the indictment is defective, the court has a discretionary power, either to quash it, or oblige the defendant to plead or demur, or move in arrest. (a) Where the question is doubtful, they will put him to his motion in arrest of judgment. (6)

An indictment may be set aside, on motion, for having been found by less than the legal number of grand jurors. But whether it can be set aside, or amended, on motion, for having been found without evidence, or upon insufficient evidence, seems doubtful. (c)

Ordinarily, a motion to quash must be made previous to plea pleaded, or any evidence given in the case ; at all events, before the cause is submitted to the jury. (2) (1) (a) 7 Cowen, 168. 2 Burr., 1127. 4 id., 2539. (c) People v. Hulbut, 4 Denio, 133

(d) 20 Wend., 108. (6) 7 Cowen, 166.

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2 Hawk., ch. 25, 146.

with the same consequences, as if no such variance had occurred. (3 294.)

Effect of verdict, etc.)—A verdict and judgment, which shall be given after the making of any such amendment, shall be of the same force and effect, as if the indictment had originally been found in its amended form. (8 295.)

(1) The prisoner, upon his arraignment, may move to quash the indictment on the ground that twelve of the grand jury did not concur in the finding; and grand jurors may be examined as to that fact. (People v. Shattuck, 6 Ab. N. C., 33.) In general, the court will not quash an indictment, though defective, after the defendant has been arraigned, and has pleaded not guilty. (People v. Walters, 5 Park., 661.)

On notion.]—The Code of Criminal Procedure directs that,

The indictment must be set aside, by the court in which the defendant is arraigned, and upon his motion, in either of the following cases:

1. When it is not found, indorsed and presented, as prescribed in sections 268 and 272;

2. When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263 and 264. (8 313.)

If the indictment be so defective that no judgment can be given upon it, even should the defendant be convicted, the court will, in

Defendant, when precluded from objecting to indictment in any other manner. If the motion to set aside the indictment is not made, the defendant is precluded from afterward taking the objections mentioned in section 313. (8 314.)

See Brotherton v. Peo., 75 N. Y., 159.

Motion when heard. )-The motion to set aside an indictment must be heard at the time of the arraignment, unless for good cause, the court postpone the hearing to another time. (8 315.)

If motion denied. If the motion be denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto. (S 316.)

If granted, defendant discharged unless the case be submitted to the same or another grand jury. I-If the motion be granted, the court must order that the defendant, if in custody, be discharged therefrom, or if under bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him; unless the court direct that the case be re-submitted to the same or another grand jury. (S 317.)

Effect of order for re-submission.]—If the court direct that the case be re-submitted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment. (S 318.)

When new indictment not found. )—Unless a new indictment be found, before the next grand jury of the county or city is discharged, the court must, on the discharge of such grand jury, make the order prescribed by section 317. (8 319.)

Order to set aside indictment, no bar to another prosecution.)-An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offense. (8 320.)

Dismissal of action on failure to find indictment.]—When a person has been held to answer for a crime, if an indictment be not found against him, at the next term of the court at which he is held, to answer, the court may on application of the defendant order the prosecution to be dismissed, unless good cause to the contrary be shown. (Code Cr. Pro., 8 667.)

Failure to bring indictment to trial.-If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the

general, quash it. Thus, an indictment at common law, for perjury, found at the sessions, has been quashed, because the sessions have no jurisdiction of such perjury. (e) So of an indictment against six, for exercising a trade; because it was a distinct offense in each, and could not, therefore, be made the subject of a joint prosecution. (f)

And there are several instances where indictments have been quashed, because the facts stated in them did not amount to an offense punishable by law. (9) As, an indictment for contemptuous words spoken to a justice of the peace, not stating that they were spoken to him whilst in the execution of his office. (1) But after a conviction, an indictment will not be quashed on the ground that, during the pendency of the trial, a second indictment for the same offense was found by the grand jury. (*) (e) 2 Stra., 1038. Russ. & Ry., 158.

(h) Matt. Dig., 283. Arch. Cr. Pl., 36. Vi 4 Burr., 2046.

(1) 20 Wend., 108. g) See Andr., 230. 1 Burr., 516, 543.

1 Str., 623, 921.

defendant, order the indictment to be dismissed, unless good cause to the contrary be shown. (Id., S 668.)

Peo., etc., v. Warden C. P., 11 W. D., 271.

When court may order action to be continued, etc.]—If the defendant be not indicted or tried, as provided in the last two sections, and sufficient reason therefor be shown, the court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody, on his own undertaking, or on the undertaking of bail for his appearance to answer the charge at the time to which the action is continued. (Id., § 669.)

Discharge of defendant, and of bail, etc.)-If the court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him. (Id., 8 670.)

Dismissal after indictment. The court may, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, order an action, after indictment, to be dismissed. (Id., 8 671.)

Discontinuance or abandonment of.]-The entry of a nolle prosequi is abolished, and neither the attorney-general nor the district attorney can discontinue or abandon a prosecution for a crime, except as provided in 8 671. (Id., 8 672.)

Eifect of dismissal, as a bar.]-An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution for the same offense, if it be a misdemeanor ; but it is not a bar if the offense charged be a felony. (Id., 8 673.)

Quashing an indictment as to one of several defendants, quashes it as to all. (k)

The application to quash, must be made to the court where the bill is found ; except in cases of indictments found at the sessions, or other inferior courts, for offenses which they have no power to try ; in which case it is made to the court of oyer and terminer or other court into which the record has been removed. (1) If the indictment

be quashed, the recognizances become ineffectual. (m) [ * 349 ] 349 ] And a jury sworn on an * indictment clearly bad in point

of law, may, it seems, be discharged by the judge from giving a verdict. (n)

Motion to quash, by prosecutor.] When the application is made on the part of the prosecution, the court will quash the indictment in all cases where it appears to be so defective that the defendant can not be convicted upon it, and where the prosecution appears to be bona fide, and not from malicious motives, or for the purpose of oppression. (6)

But a new bill for the same offense must have been first preferred against the defendant, and found. (p) And when the court, upon such an application, order the former indictment to be quashed, it is usually upon terms, viz., that the prosecutor shall pay to the defendant such costs as he may have incurred by reason of such former indictment; (2) that the second indictment shall stand in the same plight and condition that the first would have done, if it were not quashed; () and (particularly when there has been any vexatious

1 delay on the part of the prosecutor), that the name of the prosecutor be disclosed. (8)

The application on the part of the prosecutor may be made, it seems, at any time before the indictment has been actually tried. (1)

It is provided by statute, that where two indictments are pending against a defendant for the same offense, the one first found shall be deemed to be superseded by the second, and shall be quashed. (u) But the mere finding of a second indictment, is not per se, a supersedeas to the first. A motion to quash must be made. (v) Neither has a district attorney any right to enter a nolle prosequi upon any indictment, or in any other

way to discontinue or abandou the same with

(k) 7 Cowen, 166.

(9) 3 Burr., 1469. 3 Barn. & Ald., 373. 3 Burr., (l) Arch. Cr. Pl., 67. See 2 R. S., 208, 15. Id., 1463. 1 W. Black., 460 209, 6. Id., 205, 30.

(r) 3 Barn. & Ald., 373. (m) 2 Sess. Ca., 1.

(8) 3 Burr., 1468. (11) Ry. & Moo., 27.

it) Matt. Dig., 284. 1 Burr., 651. Arch. Cr. (0) Arch. Cr. Pl., 67.

Pl., 37. (P) 2 East, 226.

(u) 2 R 3., 726, 42 ; 3 id., 7th ed., 2566.

(v) 20 Wend., 108.

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