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both or either may be found guilty, but not of separate parts of the charge. And if they be found guilty separately, judgment cannot be passed upon one, unless a pardon be obtained, or a noli prosequi entered as to the other.(k)

So, on a joint charge for receiving stolen goods, a joint act of receiv ing must be proved. Proof that one received in the absence of the other, and afterwards delivered them to him will not suffice.(1) But where several are indicted for burglary and larceny, one may be found guilty of both offences, and the other of the larceny only.(m)

Misjoinder.] The misjoinder of defendants may be taken advantage of by demurrer, motion in arrest of judgment, or writ of error; or the court will generally quash the indictment. But where different counts which might otherwise in substance be joined, are inserted in the same indictment against different persons, it seems to be no cause of demurrer, though it may be for moving to quash the indictment.(n)

2d. Joinder of offences.] In point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment, against the same offender.(0) And it is no ground, either of demurrer or arrest of judgment. (p) But in treasons or felonies, no more than one distinct offence or criminal transaction should regularly be charged upon the prisoner in one indictment; for if that be shown to the court before plea, they will quash the indictment lest it confound the prisoner in his defence, or prejudice his challenge to the jury; and if it be not discovered until afterwards, the prosecutor may be compelled to elect on which charge he will. proceed.(g)

If upon an indictment for receiving stolen goods, it appear (but not upon mere probability) that the articles were received at different times, the prosecutor must elect upon which receipt he will prosecute. (r) It is no objection, in point of law, that a prisoner is charged in one count with stealing, and in another with receiving goods; but the judges, not agreeing whether the prosecutor should have been put to his election, directed that in future both charges should not be put in the same indictment.(s)

But offences, although different from each other, and varying in the

(k) Russ. & Ry. C. C. 344.

(l) ld. 257.

(m) Id. 520. 1 Sid. 171.

(n) 8 East, 41.

(0) 2 Hale, 173. 1 Leach, 1103. 8 Wend. 203.

(p) Id. ib. 1 Chit. Cr. L. 253.

(q) 3 T. R. 106. 2 East's P. C. 515. 2 Camp. 131. 3 id. 132. 2 Maule & Selw. 539. 8 Wend. 203. 9 id. 193. (r) Ry. & Moo. C. C. 146.

(s) Id. 234. 3 Car. & Payne, 413.

punishments authorized to be inflicted for their perpetration, may be included in the same indictment, and the accused tried upon the several charges at the same time, provided the offences be of the same charac ter, and differ only in degree; as for instance, the forging of an instru ment, and the uttering and publishing it, knowing it to be false. (t)

Different counts.] Though a defendant cannot be charged with dif ferent felonies in different counts, yet he may be charged with the same felony in different ways, in several counts, to meet the facts of the case. As, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the goods or house of A. or B., they may be stated in one count as the goods or house of A., and in another as of B.(u) It has been held that a count upon the statute for embezzling bank notes might be joined with a count for larceny at common law. (v)

In misdemeanors, the indictment may contain several counts for different offences, if the judgment upon each be the same. (w) Where a person was indicted for assaulting two persons, it was objected that each assault was a distinct offence; but the court said, "Cannot the king call a man to account for a breach of the peace, because he broke two heads instead of one?" (x)

If the legal judgment on the different counts be materially different; as if one were for felony and another for misdemeanor, the joinder would be bad on demurrer, arrest of judgment, or error; but it seems that the objection may be cured at the trial by taking a verdict on the counts only which could be joined. The court will not, however, order a count to be struck out, as in civil cases; for the former is the finding of the grand jury.(y)

A count charging A. as principal in the first, and B. as principal in the second degree, may be joined with a count charging B. as principal in the first, and A. as a principal in the second degree.(z)

(t) 12 Wend. 425. 2 R. S. 728, § 51. (u) 2 Bos. & Pull. 508.

(v) 3 Maule & Selw. 539.

(w) 8 Wend. 203. 3 T. R. 106. 2

Burr. 984. 8 East, 46. 2 Camp. 131. 2
Stark. 458.

(x) 2 Burr. 983.

(y) 2 Str. 1026. Hardw. 203.
(z) 7 Car. & Payne, 164.

CHAPTER VI.

Eranting copy of Endictment, Arraignment of Defendant, Pleading.

1st. GRANTING copy of indictment.] At common law the defendant was not, in cases of treason or felony, entitled to a copy of the indictment. (a) Although a defendant acquitted of felony could not bring an action against the prosecutor of the indictment without obtaining a copy of the record of the indictment and acquittal, yet he could not have a copy without leave of the judge; and the judge would not grant it if there was a probable cause for the indictment. (b) Thus trying the whole question of the guilt or innocence of the party indicted, upon a motion for a copy of the indictment !

The revised statutes have done away with this unreasonable and harsh rule. Every person indicted for any offence, who shall have been arrested upon process issued upon such indictment, or who shall have duly entered into recognizance to appear and answer to such indictment, shall, on demand, and on paying the fees allowed by law therefor, be entitled to a copy of the indictment and of all endorsements thereon. (c)

2d. Arraignment of defendant.] The arraignment is where the pris oner is brought into court, the indictment read to him by the clerk, and he is required to plead to it. The objects of the arraignment are to ascertain the identity of the party, and to know whether he demands a trial.

Upon any defendant's being arraigned upon an indictment, it shall not be necessary to ask him how he will be tried; and instead of being required to say whether he pleads guilty or not guilty, he shall be required to say whether he demands a trial upon such indictment. He may answer that he does require such trial; and for the purpose of all further proceedings such an answer shall be deemed equivalent to a plea of not guilty. If he refuses to plead or answer, and in all cases where he does not confess the indictment to be true, a plea of not guilty shall be entered

(a) 1 Lev. 68. 2 Hale, 236. 4 T. R. 692. 2 Hawk. ch. 29, § 13.

(b) Matt. Dig. 282.

(c) 2 R. S. 728, § 53.

by the court; and the same proceedings in all respects shall be had, as if he had pleaded not guilty to such indictment. (d)

No insane person can be tried, sentenced to any punishment, or punished for any crime or offence, while he continues in that state. (e) When there is reason to believe that the accused is a lunatic or idiot, the proper course is for the court to impannel a jury to decide whether he be non compos mentis or not; and if they find for the accused the trial will be suspended.(ƒ) On this preliminary trial the jurors are sworn in this manner: "You shall diligently inquire and a true verdict return, on behalf of the people of the state of New-York, whether A. B., the prisoner at the bar, who now stands indicted for murder, be of sane memory or not, according to your evidence and knowledge."(g)

3d. Pleading.] When brought to the bar and arraigned, the prisoner either confesses the charge, stands mute of malice, or does not answer directly to the charge, which may be entered as a plea of not guilty; or pleads to the jurisdiction, or in abatement-or demurs-or pleads specially in bar or generally that he is not guilty.(h)

No more than one plea can be put in in answer to an indictment.(¿) In felonies, however, if the defendant plead in abatement or specially in bar, he may at the same time or afterwards, if the plea be adjudged against him, plead over to the felony.(k)

When the defendant has any special matter to plead in abatement or in bar, or if the indictment be demurrable, he should plead it or demur at the time of arraignment, before the plea of not guilty.(1)

Plea to the jurisdiction.] Where an indictment is taken before a court that hath no cognizance of the offence, the defendant may plead to the jurisdiction; without answering at all to the crime alleged; as if a man be indicted for treason at the quarter sessions, or for a rape at the sheriff's tourn, or the like; or if another court have exclusive jurisdiction of the offence.(m)

But if the offence were committed out of the jurisdiction of the court, the defendant may take advantage of it under the general issue ;(n) or if the objection appear upon the face of the record, he may demur, or (it should seem) move in arrest of judgment, or bring a writ of error.(0) Where any matter shall be pleaded to an indictment, as having occur

(d) 2 R. S. 730, § 70.

(e) Id. 697, § 2.

(f) 3 Robinson's Prac. 115. 2 Va.

Cas. 266. 1 Mass. R. 102.

(g) 13 Mass. R. 299.

(h) Arch. Cr. Pl. 78.

(i) Id. ib.

(k) Id. ib.

(1) Id. 78, a. 2 Smith, 620.

(m) 2 Hale, 286. 4 Black. Com. 383. (n) 6 East, 583.

(0) Russ. & Ry. C. C. 158.

red in any other county than that in which such indictment was found, it shall be tried in the same manner as if it had been alleged to have occurred in the county where such plea is tendered.(p)

Plea in abatement.] If the indictment assign to the defendant no christian or surname, or a wrong one, he can only object to this matter by plea in abatement.(g) But the want of an addition or giving a wrong one, cannot be pleaded in abatement.(r)

No plea in abatement or other dilatory plea, to an indictment, shall be received by any court, unless the truth of it shall be verified by affidavit, or some other evidence. (s) It is sufficient for the plea to state that the defendant's name is so and so, and that by that name he was always called and known, without stating that he was baptized by it.(t)

The court will not, upon motion, quash a bad plea in abatement. (u) The judgment for the people on a plea in abatement in misdemeanors is final; in treason and felony, that the defendant do answer over.() The judgment for the defendant on a plea in abatement, is that the indictment be quashed.(w) But this will not prevent the defendant from being indicted again by his right name.

Special pleas in bar.] Those most commonly in use are, 1. Auterfois acquit; 2. Auterfois convict; 3. Pardon.

1st. Auterfois acquit.] Where a man is indicted for an offence, and acquitted, he cannot afterwards be indicted for the same offence, provided the first indictment were such that he could have been lawfully convicted on it; and if he be thus indicted a second time, he may plead auterfois acquit, and it will be a good bar to the indictment. The true test by which the question whether such a plea is a sufficient bar in any particular case, may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first.(1)

A trial and acquittal for robbery is a bar to an indictment for larceny, where the property alleged to have been taken is the same.(x) On a plea of auterfois acquit where the only issue is the identity of the offences, a variance between the record of acquittal and the indictment under which the last trial is had, in the number of articles alleged to have been

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