taken, and in the names of the owners of the property, will be disregarded, when no proof is offered on the part of the prosecution to show that the offences are in fact different. (y)

On a plea of auterfois acquit, evidence is admissible as to the diversity or identity of the offences. (z)

A trial and acquittal for the forgery of a certificate of deposit of money in a bank, is no bar to an indictment for an attempt to obtain money from another bank by color of a forged letter enclosing the certificate of deposit, and desiring the amount to be transmitted to the writer of the letter.(a) An acquittal by a competent jurisdiction abroad is a bar to an indictment for the same offence before any other tribunal.(b) Even an erroneous acquittal, standing unreversed, is a sufficient foundation for this plea.(c)

But an acquittal upon an indictment in a wrong county cannot be pleaded to a subsequent indictment for the offence in another county.(a) So an acquittal upon an indictment for a felony is no bar to an indictment for a misdemeanor, and e converso. (e) An acquittal as accessary also, is no bar to an indictment as principal, and e converso. (f) And a person indicted for compounding a larceny and agreeing to withhold evidence, cannot plead the acquittal of the person charged with the larceny, in bar of his own conviction.(g)

It is provided by statute that when a defendant shall be acquitted or convicted upon any indictment for an offence consisting of different degrees as prescribed in the statute, he shall not thereafter be tried or convicted for a different degree of the same offence, or for an attempt to commit the offence charged in the indictment, or to commit any degree of such offence.(h)

An acquittal upon an insufficient indictment, however, is no bar to another indictment for the same offence.(i) Thus our statute declares that when a defendant shall have been acquitted of a criminal charge, upon trial, on the ground of a variance between the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same of fence.(k) But where the defendant has been acquitted upon trial, on the merits and facts, and not on the ground of a defect or variance, he

(y) 17 Wend. 386.

(z) Id. ib.

(a) 15 Wend 231

(b) 1 Leach, 135. Bull. N. P. 245. (c) Arch. Cr. Pl. 88.

(d) Id. ib. Com. Dig. Indict. (L). (e) 2 Hawk. P. C. ch. 35, s. 5.

(f) Id. ib. s. 11. 2 Hale, 244. Fost. 361.

(g) 13 Wend 592.

(h) 2 R. S. 702, § 28.

(i) 4 Coke, 45, a. 1 John. 66. 2 Caines' Rep. 304.

(k) 2 R. S. 701, § 24.

may plead such acquittal in bar of any subsequent accusation for the same offence, notwithstanding any defect in form or in substance in the former indictment. (2)

A nolle prosequi, or a dismission of the case is not an acquittal, and cannot be pleaded in bar to a subsequent indictment for the same of fence.(m)

If the indictment be for felony or treason the defendant, besides this plea of auterfois acquit, should also plead over to the felony, &c.(n) If he plead auterfois acquit without pleading over, after his special plea is found against him, he may still plead over to the felony.(0)

On a plea of auterfois acquit a jury are sworn, instantly to try the cause.(p) The proof of the issue upon this plea lies upon the defendant.(g)

The judgment against the defendant upon this plea, in felonies, is respondeat ouster; or rather, as he generally pleads over to the felony at the same time with the plea of auterfois acquit, the jury are charged again to inquire of the second issue. (r) In misdemeanors the judgment is final. (s) When the plea is allowed, the judgment is that the defendait shall go without day, and he is altogether discharged from the prosecution.(t)

2d. Auterfois convict.] Now that benefit of clergy is abolished, a previous conviction can only be pleaded in bar of any subsequent indictment for the felony of which the defendant has been previously convicted. (u) This plea, like that of auterfois acquit, must set out the record of conviction, to the judgment, inclusive, and must contain an averment that the offences charged in the former indictment, and in the present, are one and the same, and not different offences. (v)

The statute against duelling and sending challenges to fight contains a provision that persons indicted here for those offences, may plead a former conviction or acquittal for the same, in another state or country; and that if such plea be admitted or established, it shall be a bar to any further or other proceedings against him for the same offence.(w)

3d. Pardon.] A pardon may be pleaded in bar to the indictment; or after verdict in arrest of judgment; or, after judgment, in bar of execution. But it must be observed that it is necessary to plead it the first

opportunity the defendant may have of so doing; for if, for instance, he have obtained pardon before arraignment, and instead of pleading it in bar, he plead the general issue, he shall be deemed to have waived the benefit of it; and cannot afterwards avail himself of it in arrest of judgment.(x) This necessity of pleading a pardon, however, relates to the Governor's pardon only; for a statute pardon need not be pleaded; unless there be exceptions in it.(y)

In this state the Governor is authorized to grant pardons upon such conditions, restrictions, and limitations, as he may think proper.(2) Where a pardon of this nature is pleaded it should be averred that the condition, &c. has been complied with.

General issue.] The general issue is pleaded by the prisoner viva voce at the bar, in these words "not guilty;" by which plea, without further form, every person on being arraigned upon an indictment, is deemed to have put himself upon the country for trial. Under the revised statutes, however, the defendant instead of being required to say whether he pleads guilty or not guilty, shall be required to say whether he demands a trial upon such indictment. If he answer that he does require such trial such answer shall be deemed equivalent to a plea of not guil ty. 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 is to be entered by the court. (a)

The general issue makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offence, as stated in the indictment. On the other hand the defendant may give in evidence, under this plea, not only every thing which negatives the allegations in the indictment, but also all matter of excuse and justification.(b)

Demurrers.] Another mode by which the defendant may object to the indictment is by demurrer; which signifies that the party will go no further because the indictment is defective in substance, or informal in statement.(c) Thus, if a man be indicted for feloniously stealing a greyhound, which is an animal in respect whereof no theft can be committed, the defendant may demur; for while he admits the taking he may deny the felony.(d) But it seems to be unsettled whether he can demur on account of the omission or bad statement of the defendant's name, or must plead it in abatement. (e)

(x) Arch. Cr. Pl. 92. 1 Ro. Rep. 297.
(y) Id. ib. Fost. 43. 2 Hale, 252.
(z) 2 R. R. 745, § 21.
(a) 2 R. S. 730, § 70.

(b) Arch. Cr. Pl. 93.

(c) 1 Chit. Cr. L. 438.

(d) 4 Black. Com. 334.

(e) 1 Chit. Cr. L. 439. Andrew, 148,

150. 2 Hale. 175.

As to the form of the demurrer, it seems that in capital cases it may be ore tenus, on whichever side the objection arises. (f) The defendant when indicted for felony may either demur and at the same time plead over to the felony, or may take the latter course after the demurrer is found against him.(g)

The judgment for the defendant upon demurrer is that he be dismissed and discharged from the premises. The judgment against the defendant in misdemeanors is the same as upon demurrers in civil cases.(h) But demurrers in felonies have hitherto been of such rare occurrence that it is doubtful what judgment ought to be pronounced against the defendant. The older authorities go to show that it is final; (i) but by some this is doubted; and it is said that in favorem vitæ the defendant shall plead over to the felony.(k)

An information may be amended after demurrer. (1) But an indictment, which is a finding upon the oaths of the grand jury, can only be amended with their consent before they are discharged.(m)

(f) Fost. 105. 1 Chit. Cr. L. 440.

(g) 8 East, 112. 2 Hale, 257. 4 Black. Com. 334.

(h) 5 Dowl. & Ry. 422. 5 Barn. & Cress. 502, 612.

(i) See 2 Hawk. ch. 31, s. 5.

(k) Arch. Cr. Pl. 85. 2 Hale, 225,

257. 4 Black. Com. 334. 8 East, 107. (1) 4 T. R. 457.

(m) 2 Hawk. ch. 25, s. 97, 98.

39

CHAPTER VII.

In what cases Endictment will be quashed.

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.(b)

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.(c)

If the indictment be so defective that no judgment can be given upon it, even should the defendant be convicted, the court will, in 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.(d) So of an indictment against six, for exercising a trade; because it was a distinct offence in each, and could not, therefore, be made the subject of a joint prosecution. (e)

And there are several instances where indictments have been quashed, because the facts stated in them did not amount to an offence punishable by law. (f) 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. (g) 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 offence was found by the grand jury. (h)

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

The application to quash, must be made to the court where the bill is