is recorded, whenever the defendant wishes to withdraw his plea of not guilty and confess the accusation.1 § 42. THE PLEA OF NOLO CONTENDERE. Bishop says the plea of nolo contendere, as it is usually called, is not common; but it is sometimes in misdemeanors allowed, partly by way of compromise between the prosecuting officer and the defendant. It differs but slightly in its effect from the plea of not guilty.2 Hawkins states it to be an implied confession, where the defendant in a case not capital doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine.3 Perhaps the only difference between this plea where it is received and the plea of guilty is, that while the latter is a solemn confession which may bind the defendant in other proceedings, the former is held to be a confession only for the purposes of the particular case.1 § 43. OF THE PLEA OF PARDON. When the prisoner has either personally obtained a pardon for himself or is included in a general act of grace, he should plead that privilege specially, as otherwise the court will not be bound to allow it, and, indeed, has no discretionary power to notice it.5 The pardon is only a bar to an indictment for an offence specified in it, and not for any other committed before or after." If there be any variance between the denomination of the party in the indictment and in the pardon, or in his addition, he may show by proper averments of identity that the same person is intended. So, also, if in an indictment for homicide, the time of the death is stated differently, the variance may be thus explained and rendered harmless. And if these explanatory, averments be * Com. v. Fulton, 8 Met., 232; Com. v. Tilton, 9 Pick., 206; 1 Bish. Cr. Pro., 469. 'Cro. Car., 32-449; U. S. v. Wilson, 7 Peters, 150. ' R. v. Harrod, 2 Car. & K., 294. omitted, the court will, in their discretion, defer the proceedings in order to give time for the defendant to perfect his plea, or to obtain a more effectual pardon." In pleading a general act of pardon, if the act contain exceptions of particular persons by name, or of a general description of persons, it is in general necessary for the defendant to show specially that he is not one of the parties named in the statute, as without its benefit in the first case, or included in the prescribed description in the second." § 44. OF REPLICATIONS TO SPECIAL PLEAS AND OF JOINDERS TO DEMURRERS. The district attorney should traverse the special pleas of the defendant by a replication, and the defendant's demurrer by a joinder thereto, forms of which will be found in the appendix. § 45. BAILING, THE DEFENDANT AFTER INDICTMENT. Upon the arrest of the defendant upon the bench warrant, and his presence in court, he may make an application to be let to bail. He may be let to bail from day to day during the session of the court, or he may make an application to postpone or continue the trial of his indictment to the next term of either the court of oyer and terminer, or of the sessions, if the offence be triable in that court, and be let to bail for his appearance at the term of the court to which the indictment is sent for trial. Bail has been defined to be the delivery of a person to his sureties, upon their giving, together with himself, sufficient surety for his appearance at court to answer the charge against him, he being supposed to continue in their friendly custody instead of going to prison.3 A recognizance taken in pursuance of an order of an officer authorized to let to bail, and by an officer having general jurisdiction to let to bail and to take recognizances, though he be not the officer before whom the application to let to bail is pending, is valid, especially where the officer acquires jurisdiction of the person of the party by his voluntary appearance and acknow ' Hawk., B. 2, ch. 37, § 66; Bac. Abr. Pardon, G. II; 1 Rol. Rep., 368; Bro. Abr. Charter de Pardonne, 15; Reilw., 58; 1 Dyer, 34 a. Cro. Eliz., 125. 4 Blac. Com., ch. 22, § 297. ledgment, and where the officer before whom the application is pending subsequently adopts the recognizance thus taken, and lets the prisoner to bail of it, and the recognizance itself is filed by him and becomes a record.1 § 46. POWER OF OYER AND TERMINER AND COURTS OF SESSIONS TO BAIL PRISONERS. The courts of oyer and terminer held in any county, have power to let to bail any person committed before indictment found, upon any criminal charge whatever, and, by virtue of their power to deliver the county jails according to law of all prisoners therein,3 have power to let to bail persons indicted upon any criminal charge whatever.4 The court of sessions of any county have power to let to bail persons committed to the prison of such county before indictment found, for any offence triable in such court; and also to let to bail persons indicted in the said court for any crime or misdemeanor triable therein as provided by law." It is also further provided by statute that in the cases where by law persons indicted may be let to bail for their appearance at the court having cognizance of the offence, they may be so let to bail by the court having jurisdiction to try the offence charged.7 47. BY WHOM BAIL MAY BE TAKEN AFTER THE ADJOURNMENT OF THE COURT. Although the application to let the defendant to bail may be granted, it sometimes happens that his sureties may not be forthcoming until after the court has adjourned. There is a provision of the Revised Statutes which provides that a justice of the Supreme Court shall have power to let to bail in all cases, a judge of the county court, in all cases triable in a court of sessions, and justices of the peace, aldermen of cities, 1 Peo. v. Leggett, 5 Barb., 360. 2 R.. S., 710, § 32. '2 R. S., 205, § 14, sub. 3. Peo. v. Van Horne, 8 Barb., 162; Peo. v. Hyler, 2 Park., 570. and in the city of New York special justices, and assistant justices in all cases of misdemeanor, and in all cases of the felony where the imprisonment in the State's prison cannot exceed five years; but a subsequent section of the statutes,1 declares that no officers other than those therein named, shall let to bail any person indicted for any offence, where the court having jurisdiction to try the offence charged is not in session. The officers named in the section last above referred to, who have power to bail after indictment found, where the court having jurisdiction to try the offence charged is not in session, are Supreme Court judges, and when the offence charged may be tried in a court of sessions, the judge of the county courts in the county where the indictment was found. But it has, however, been held in a late case, that a county judge may let to bail in all cases that a justice of the Supreme Court can let to bail, whether the prisoner be indicted or not; a county judge having the same power under the judiciary act of 1847, that Supreme Court commissioners formerly had in that respect.2 When a person charged with crime is let to bail by a judge out of court, it is customary for the sureties to appear with such person before the judge, and there execute and acknowledge the recognizance; yet, as the statute only requires that recognizances in criminal proceedings, not taken in open court, “shall be in writing, and subscribed by the parties to be bound thereby," it is only necessary that the criminal should appear before, the judge to confer jurisdiction on such judge to let him to bail, and the acknowledgement of the execution of the recognizance by the prisoner's sureties, may, therefore, be taken by a judge in another county.3 A justice of the Supreme Court at chambers, has not power to let to bail a person arrested within the county of such justice's residence, upon a State prison offence, and under a warrant which was issued in another county, and one who is arrested upon a bench warrant duly issued on an indictment in another county, cannot be let to bail in the former county; he must first be carried to the county whence the warrant issued.1 12 R. S., 728, §§ 59, 60. Peo. v. Hurlburt, 44 Barb., 130. • Matter of Gorsline, 21 How., 85; 10 Abb., 282; Sichel v. Chapman, 30, How., 202. Vide 6 Hill, 344. It is provided by statute that no person committed to jail in the county of Erie, after indictment found against him, shall be admitted to bail without the written consent of the district attorney, except by some court having jurisdiction to try the offence charged in the indictment, or by one of the officers authorized by law to allow writs of certiorari, and make orders for the removal of criminal causes in the said county of Erie.1 The officers above mentioned are the county judge of Erie county, being of the degree of counsellor at law in the Supreme Court, the justices of the Supreme Court and superior court, and the recorder of the city of Buffalo.2 Under the English practice, the officer who lets the defendant to bail, issues what is called his warrant of deliverance to the sheriff or jailor who has the custody of him. With us it is usually the practice for the officer taking the bail to indorse upon the bench warrant a memorandum signed by such officer, stating that he has let the prisoner to bail, and discharged him from custody upon a proper recognizance being executed. In case, after the adjournment of the court, the prisoner should desire to be let to bail, upon making an application to the proper officer for the purpose, if the application be granted, such officer generally sends a written request to the sheriff or jailor having the custody of the defendant, requesting that he bring the body of the defendant before him for that purpose. If the sheriff or jailor should decline to obey the request, the defendant should then procure a writ of habeas corpus to be brought before the judge for the purpose of being bailed. §48. IN SUCH CASES RECOGNIZANCE TO BE FILED. Whenever any person indicted for any offence shall be let to bail, the officer taking the recognizance shall immediately file the same with the clerk of the county in which the indictment was found. The Laws of 1861, chap. 333, § 2, further declare that every recognizance taken to appear and answer at any court, and the papers upon which such recognizance is founded, shall be filed in the office of the clerk of the court at which the party is 'Laws 1846, ch. 142, § 4; 2 R. S., 710, § 38. • Id, § 1. '2 R. S., 729, § 61. |