found; except in cases of indictments found at the sessions, or other inferior courts, for offences 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. (k) If the indictment be quashed, the recognizances become ineffectual. (1) 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.(m) 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 cannot be convicted upon it, and where the prosecution appears to be bona fide, and not from malicious motives, or for the purpose of oppression.(n) But a new bill for the same offence must have been first preferred against the defendant, and found. (0) 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 ;(p) that the second indictment shall stand in the same plight and condition that the first would have done, if it were not quashed ;(q) and, (particularly when there has been any vexatious delay on the part of the prosecutor,) that the name of the prosecutor be disclosed. (r) The application on the part of the prosecutor may be made, it seems, at any time before the indictment has been actually tried. (s) It is provided by statute, that where two indictments are pending against a defendant for the same offence, the one first found shall be deemed to be superseded by the second, and shall be quashed.(t) But the mere finding of a second indictment, is not per se, a supersedeas to the first. A motion to quash must be made.(u) Neither has a district attorney any right to enter a nolle prosequi upon any indictment, without leave of the court. (v) If he wishes to try the defendant on a second indictment, for the same offence embraced in the previous one, he must move to quash the first before he can do so. Motion to quash by defendant.] When the application is made on the (k) Arch. Cr. Pl. 67. See 2 R. S. 208, § 5. Id. 209, § 6. 3 Burr. 1469. 378. 3 Burr. 1468. 3 Barn. & Ald. 1 W. Blac. 460. (q) 3 Barn. & Ald. 373. (r) 3 Burr. 1468. (s) Matt. Dig. 284. 1 Burr. 651. Arch. Cr. Pl. 37. (t) 2 R. S. 726, § 42. part of the defendant, the courts almost uniformly refuse to quash an indictment, where it appears to be for some enormous crime, such as treason or felony, (w) forgery, perjury, and subornation. (x) They have also refused to quash indictments for cheats ;(y) for selling flour by false weights;(z) for extortion ;(a) for not executing a magistrate's warrant ;(6) and in many other cases. (c) The application, if made on the part of the defendant, must also be before plea pleaded. (d) (w) Com. Dig. Indictment, (H). (x) 1 Salk. 372. 1 Sid. 54. 1 Vent. 370. 3 Dowl. & Ry. 621. (y) 6 Mod. 42. 29 Burr: 1841. (a) 5 Mod. 13. (b) 2 Stra. 1211. (c) See Matt. Dig. 284. (d) Fost. 231. Holt, 684. 4 St. Tr. 677. CHAPTER VIII. Removal of Endictment before Trial or Judgment. THIS sort of proceeding is regulated in this state by statute, as follows: Every person against whom an indictment shall be pending in a court of general sessions, may apply to any justice of the supreme court, circuit judge, or supreme court commissioner, for an order to remove such indictment to the court of oyer and terminer of the county in which the same was found. Such application shall set forth a copy of the indictment, or the substance thereof; the time when it was found; the proceedings thereon, if any, and the facts and circumstances rendering a removal thereof expedient; and shall be verified by affidavit. Such officer shall grant an order that the indictment be removed to, and tried at the next court of oyer and terminer to be held in the county where the same was found, unless it appears that the application was not made in due season, or that such removal will produce any injurious delay, or in any way tend to prevent a due prosecution of such indictment. And the officer must take a recognizance from the defendant (if he is not in custody) to appear at the oyer and terminer. No such order for the removal of an indictment shall be effectual, in the case of any defendant not being in actual confinement, unless such a recognizance be delivered at the same time with such order, and be filed with the clerk of the court; nor unless such order be delivered before any judgment rendered on any such indictment, and before any ju ror shall be sworn to try it. No certiorari to remove an indictment from a court of general sessions to the supreme court, or to any court of oyer and terminer, before trial thereon, can be allowed. And no certiorari to remove into the supreme court any indictment pending in a court of oyer and terminer, before trial thereon, is effectual, unless allowed by a justice of the supreme court, or a circuit judge; and no other officer has any power to allow such writ. The officer allowing a certiorari to remove an indictment from a court of oyer and terminer is to take the defendant's recognizance, with sureties, to appear at the return day of the certiorari, in the supreme court, and plead to such iudictment, if issue is not already joined; and not depart such court without its leave; and to obey the orders and rules of such court, in respect to the trial of such indictment, and the judgment and all other proceedings thereon. Every indictment so removed is to be carried down for trial at the proper circuit court, by the district attorney of the county in which the same was found, in the same manner in all respects as issues joined in the supreme court in civil cases, and the same proceedings, so far as applicable, are to be had thereon. (a) (a) 2 R. S. 731, 2, 3. CHAPTER IX. Trial of Indictment. 1. In what court to be tried. 4. Defendant to be present. 5. Right to counsel. 6. Witnesses. 7. Discharging one of several defendants. 8. Separate trials. 9. Entering a nolle prosequi. 10. Commissions to examine witnesses abroad. 11. Examining witnesses conditionally. 12. Compromising offences. 13. Letting accused to bail. 14. Exceptions by defendants. 15. Putting off trial. 16. New trial. 1st. In what court to be tried.] Indictments can only be tried in the circuit court, the oyer and terminer, general sessions of the peace, and certain mayors' courts. Circuit court.] Where an indictment is removed into the supreme court, before trial, by certiorari, it should be carried down for trial at the proper circuit court, by the district attorney of the county in which the same was found, in the same manner in all respects as issues joined in the supreme court in civil cases, and the same proceedings, so far as applicable, shall be had thereon. (a) Oyer and terminer.] Courts of oyer and terminer may be held at the time and place at which any circuit court may have been appointed to be held, as follows: In the city and county of New-York, by one or more (a) 2 R. S. 733, § 84. See 8 Wend. 549. |