ber of persons for breaking and entering a lead mine, though it was defective, because there were large numbers of persons met together and the judges were trying others in the same county for similar offences.1 So, also, the court will refuse to quash an indictment for a nuisance without a certificate that it is removed.2 So, also, they have refused to quash an indictment against a parish for not repairing a highway on an affidavit that the way was not in repair. So, also, have they refused to quash an indictment against overseers for not paying money over to their successors, for it was said this was a growing evil, and affecting the interests of the community; other cases are also cited.

4

Where offences, though private in their nature, are public in their consequences, in which the courts have refused to quash as indictments for forcible or fraudulent entries,5 for disturbances in church, or against a bankrupt for embezzling his effects," or for enticing away a servant.

8

In a late case in this State, the general rule was laid down as follows: The court will not ordinarily quash an indictment after the defendants have been arraigned and pleaded not guilty. In cases of indictments which charge the higher crimes or other offences which affect the public at large as perjury, forgery, &c., the courts uniformly refuse to quash, except where the objection could not be obviated or the error corrected by a new indictment. The court is in no case bound to quash an indictment ex debitio justitiae, but may oblige the defendant to plead or demur.

It is provided by statute that no indictment shall be deemed invalid.

1. By reason of having omitted the addition of the defendant's title, occupation, estate or degree, or by reason of the mis-statement of any such matter, or of the town or county of his residence, where the defendant shall not be misled or prejudiced by such statement; or,

1

1 1 Wils., 325; Com. Dig. Indict., 1 H.; Bac. Abr. Indict. K.

4 Burr., 2116; 1 Salk., 372; Cro. Car. 584; 2 Ld. Raym., 1164; Andr., 139, 220; 1 Vent., 370; Bac. Abr. Indict. K.; 1 Barnard K. B., 45.

4

3 2 Chit. R., 216.

* 2 Stra., 1268; Bac. Abr. Indict. K.; Com. Dig. Indict., H.

6 Mod., 96.

' 1 Leach, 10; 3 J. B. Moore, 656.

• Cro. Car., 584; 1 Sid., 54.

1 Salk, 372; Com. Dig. Indict., H; see also 6 Mod., 42; 3 Burr, 1841.

• Peo. v. Walters, 5 Park., 661. Vide Peo. v. Strong, 1 Abb. Pr., N. S., 244.

2. By the omission of the words, "With force and arms," or any words of similar import; or,

3. By reason of omitting to charge any offence to have been committed contrary to any statute, or contrary to several statutes, notwithstanding such offence may have been created, or the punishment thereof, may have been declared by any statute; or, 4. By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.1

§ 31. MOTION TO QUASH BY THE PROSECUTOR.

2

When the application is made by the prosecutor the court will not quash the indictment as a matter of course, unless it appear to be clearly insufficient; nor even then, after the defendant has pleaded, unless another good indictment has been found against him; nor where he has been put to extra expense unless the costs are first paid him. But where the indictment is insufficient, and the defendant is not put to inconvenience, the court will quash it upon the motion of prosecutor without the consent of the defendant.5

The application, on the part of prosecutor, may be made at any time before the indictment has been tried."

It is a good ground for granting the motion to quash, that the facts stated in the indictment did not amount to an offence punishable by law.7

Under the English practice it is said that, where the prosecu tion is by the attorney general, an application to quash the indictment is never made, because he may enter a nolle prosequi, which will have the same effect; and, as our district attorneys have the same power, the entry of a nolle prosequi is generally resorted to by the prosecution here instead of a motion to quash; and in England, before an application upon the part of the pros

1 2 R. S., 728, § 54.

Dougl., 240; Com. Dig. Indict., H.

* 1 Leach, 11; 6 Mod., 262; 2 East. R., 226.

3 Burr, 1469; 2 Stra., 946; Stark, 282; Com. Dig. Indict., H; Bac. Abr. Indict., K.

73 Burr, 1468; 1 Blac. Rep., 460; Com. Dig. Indict., H; Bac. Abr. Indict., K; 1 Arch. Cr. Pr., § 102, notes.

• 1 Burr, 651; Mott Dig., 284.

R. v. Philpot, 1 C. & K., 47 E. C. L., 112; 1 Burr, 516; Andr., 230.

* R. v. Stratton, 1 Doug., 239, 240; R. v. Bumby, 48 E. C. L. R., 348.

ecution to quash is granted, a new bill for the same offence must have been preferred against the defendant and found.'

§ 32. MOTION TO QUASH BY THE DEFENDANT.

When the motion is made on the part of the defendant, the rules by which the court are guided are more strict, and their objections are more numerous, because, if the indictment is quashed the recognizance will become ineffectual; and courts usually refuse to quash on the application of the defendant, when the indictment is for a serious offence, unless upon the clearest and plainest ground, but will drive the party to a demurrer or motion in arrest of judgment or writ of error.3

It is therefore said to be a general rule that no indictments which charge the higher offences, as treason or felony, or those crimes which immediately affect the public at large, as perjury, forgery, extortion, conspiracies, subornation, keeping disorderly houses, or offences affecting highways or not executing legal process, will be thus summarily set aside.*

The application, if made by the defendant, should be before plea pleaded. Thus, after the defendant has plead not guilty, no motion will lie to quash the indictment. And the court will overrule a motion to quash after a nolle prosequi has been entered.7

So, also, if the defendant did not duly appear, or has forfeited his recognizance, his application to quash the indictment will be ineffectual.R

The quashing an indictment as to one of several defendants, has the effect of quashing it as to all.9

1 R. v. Wynn, 2 East., 226.

2 Sess. Cas., 1.

Cald., 432-554; Nolan P. S., 261; 1 Arch. Cr. Pr., § 102, note; Com. Dig. Indict. H.; R. v. Johnson, 1 Wils., 325; 1 Salk., 372; R. v. Thomas, 3 D. & R., 621.

4

Arch. Cr. Pr., vol. 1, § 102, note; 1 Salk., 372; Com. Dig. Indict. H.; 5 Mod., 13; 2 Sess. Cas., 1-2-4-8; 1 Id., 337-339; 2 Stra., 1210; 2 Hawk., ch. 25, § 146; Burns, J., Perjury, III; Williams, J., Perjury, II; Bill v. Com., 8 Grat., 600.

Fost., 231; Holt, 684; 4 St. Tr., 677.

Peo. v. Monroe, 20 Wend., 108; 7 Blackf., 324-186; 3 Shepley, 104; 13 Sme. & Marsh, 468.

'U. S. v. Hill, 1 Brook, 156.

9

* 1 Salk., 380; 1 Barnard, K. B., 44.

State v. Smith; Peo. v. Eckhart, 7 Cow., 535; 1 Murphy, 213. Contra, Coats v. Peo., 5 Park., 662.

After the indictment against the defendant has been quashed, a new and more regular one may be preferred against him. He can gain, therefore, very little advantage, except delay, by such an application, and therefore usually reserves his objection until after the verdict, when, if the indictment be found to be insufficient, the court are bound ex debito justitia to arrest the judgment.1

CHITTY states the rule to be that if the application is made on behalf of the defendant, the court will not grant it unless the defect is very clear and obvious, but will leave him to take objection in some other form.2

§ 33. NOLLE PROSEQUI.

A nolle prosequi is defined as "A proceeding on an indictment by which the prosecuting officer argrees to prosecute no further, either as to the whole of the indictment, or as to some particular part of it."

It is provided by statute that it shall not be lawful for any district attorney to enter a nolle prosequi upon any indictment, or in any other way to discontinue or abandon the same without the leave of the court having jurisdiction to try the offence charged entered in the minutes."

The court has no power to order the entry of a nolle prosequi upon an indictment. The power at common law could only be exercised by the attorney general, and there is no statute in this State depriving him of it; but a district attorney cannot enter a nolle prosequi without leave from the proper court.5

A nolle prosequi in criminal proceedings does not amount to an acquittal of the defendant; but he may again be prosecuted for the same offence, or fresh process may be issued to try him on the same indictment, at the discretion of the prosecuting officer. The defendant, however, when a nolle prosequi is entered, need not enter into recognizance for his appearance at any other time."

1 2 Burr., 1127.

21 Chit. Cr. L., 299.

3 Burril's Law Dict., tit. nolle prosequi.

2 R. S., 728, § 56.

Peo. v. McLeod, 1 Hill, 377; see 25 Wend., 572; 1 Chit. Cr. L., 478; 1 Ld Raymond, 721; 2 Mass. R., 414.

⚫ State v. Thornton, 13 Iredell, 256; Com. v. Wheeler, 2 Mass., 172.

' Idem; 13 Iredell, 256.

As the effect of a nolle prosequi is to put the defendant without day upon that indictment, he becomes, while he is so, amenable on another indictment, in any court having jurisdiction of the

offence. 1

The defendant may be found guilty on one of several counts, and a nolle prosequi be entered as to the rest.2

A nolle prosequi may also be entered as to one of several defendants at any time before the trial.3

Where the defendant is charged with receiving knowingly stolen goods, and in the same indictment it is alleged that he had before been convicted of the like offence, and the jury brought in a general verdict on such indictment, it was held that a nolle prosequi as to the aggravation laid by the allegation, that there had been a former conviction for a like offence might be entered.4 A nolle prosequi cannot be entered to part of a single count in an indictment, but it may be as to the whole of the indictment, or to any one or more of several counts in it, and a court of sessions has no power to direct a nolle prosequi to be entered on an indictment pending therein for an offence not triable in that court."

§ 34. OF PLEAS BY THE PRISONER.

The answer which the defendant makes to the indictment is generally known by the name of his plea. The pleas of guilty and not guilty are delivered orally in court by the prisoner, and entered by the clerk upon its minutes. Special pleas and pleas in abatement require legal skill in framing them, so as to meet the exigencies of the case, and are written out by the counsel for the prisoner; although they may be, any of them, pleaded ore

tenus.

It is provided by statute that no plea in abatement, or other dilatory plea to an indictment, shall be received by the court unless the party offering such plea shall prove the truth thereof by affidavit or by some other evidence."

The statute further provides that, where any matter shall be

'State v. McNeil, 3 Hawk. S., 183; State v. Haskett, Riley 97.