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Fourth-The words used must be construed in their usual acceptation in common language, except such words and phrases as are defined by law, which are to be construed according to their legal meaning.

Fifth ;-Words used in a statute to define a public offence, need not be strictly pursued in the indictment; but other words conveying the same meaning, may be used.

Sixth ;-The indictment is sufficient, if it can be understood therefrom, 1. That it is entitled in a court having authority to receive it, though the name of the court be not accurately set forth; 2. That it was found by a grand jury of the county in which the court was held; 3. That the defendant is named, or if his name cannot be discovered, that he be described by a fictitious name, with the statement that he has refused to discover his real name; 4. That the offence was committed at some place within the jurisdiction of the court; except where the act, though done without the local jurisdiction of the county, is triable therein; 5. That the offence was committed at some time prior to the time of finding the indictment; 6. That the act or omission, charged as the offence, is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; 7. That the act or omission, charged as the offence, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction, according to the right of the case.

Seventh ;-The indictment shall not be deemed insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.

These constitute the elements of the system of pleading recommended by the Commissioners; to which are added others of a subordinate character, designed to render them convenient in their practical operation. They have also incorporated in the Code, the general form of an indictment, and have given in an appendix, several forms

of indictments applicable to particular cases, proposing that in others, forms may be used as nearly similar as the nature of the case may permit. That the difference may be seen between those now in use and those proposed by the Commissioners, they will submit the present form of an indictment of murder, and that which the Code proposes to substitute.

The present form is as follows:

"County of Columbia, ss: The jurors of the people of the State of New-York, in and for the body of the county of Columbia, upon their oath present, that John Jones, late of the first ward of the city of Hudson, in the county of Columbia, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the first day of January, in the year of our Lord, one thousand eight hundred and forty-nine, with force and arms, at the ward, city and county aforesaid, in and upon one William Green, in the peace of God and of the said people, then and there being, feloniously, wilfully and of his malice aforethought, did make an assault, and that the said John Jones, then and there riding upon a certain horse, of the value of fifty dollars, the said horse in and upon the said William Green, then and there feloniously, wilfully and of his malice aforethought, did ride and force, and him, the said William Green, with the horse aforesaid, then and there, by such riding and forcing, feloniously, wilfully and of his malice aforethought, did cast and throw to and upon the ground; by means whereof the said horse, with his hinder feet, him, the said William Green, so cast and thrown to and upon the ground, as aforesaid, in and upon the hinder part of the head of him, the said William Green, then and there did strike and kick, thereby, then and there giving to the said William Green, in and upon the said hinder part of the head of him, the said William Green, one mortal fracture and contusion, of which said mortal facture and contusion, he, the said William Green then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John Jones, him, the said Wil

liam Green, in manner and form aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder, against the peace of the people of the state of New-York, and their dignity."

This, it will be observed, is but one count. If there be the slightest possibility that any other mode of killing or means of death should appear upon the trial, a careful pleader will of course insert as many counts, in the same form, adapting them to the possible difference in proof, as will obviate the danger of a variance between the evidence and the indictment.

Under the Code, the same case, which can only be set forth in a single count, would be stated as follows:

"Court of oyer and terminer of the county of Columbia.

The people of the state of New-York

against John Jones.

"John Jones is accused by the grand jury of the county of Columbia, by this indictment, of the crime of murder, committed as follows:

"The said John Jones, on the first day of January, 1849, at the city of Hudson, in this county, without the authority of law, and with malice aforethought, killed William Green, by riding over him with a horse."

The indictment having been found, the next step is the arraignment of the defendant. The provisions on this subject, (sec. 326-344,) do not vary materially from the existing practice. The personal presence of the defendant is required where he is indicted for a felony, but where the charge is for a misdemeanor, he may plead by counsel. If he appear for arraignment, without counsel, it is made the duty of the court to inform him of his right to counsel before his arraignment. Upon his arraignment, he is to be furnished with a copy of the indictment and of the list of witnesses endorsed upon it. To obviate the necessity of a plea of misnomer, he is to be informed that if the name

by which he is indicted be not his true name, he must declare his true name or be proceeded against by the name in the indictment. If he allege that another name is his true name, it is to be entered in the proceedings and in that name all subsequent proceedings are to be had. If he require it, he is to be allowed until the next day, or such further time as the court may deem proper, to answer the indictment, and when called upon to do so, he may either move to set aside the indictment, or demur, or plead.

The motion to set aside the indictment may be made, when it has not been found by twelve of the grand jury, or endorsed by the foreman, or presented to the court in their presence, or when the names of the witnesses examined or whose depositions have been read before the grand jury, are not endorsed on or appended to the indictment, or when any person has been permitted to be present during the consideration of the case by the grand jury, except a member of the court or the district attorney, when their advice has been required, or a witness under examination. On setting aside the indictment, the court may direct the case to be re-submitted to the grand jury, which must be done before the end of the next term; and may in the mean time continue the defendant in custody or on bail. The order setting aside the indictment is no bar to another prosecution. (Sec. 345-352.)

If the indictment be substantially defective, the defendant may demur to it, as at present. If the demurrer be allowed, he must be discharged, unless the court deem that a new indictment can be found; on which he can be legally convicted; in which case he may be continued in custody or admitted to bail. If it be disallowed, the defendant may plead to the indictment, if he elect to do so. judgment may be pronounced against him. (Sec. 253-263.)

If not,

The plea is of three kinds:-guilty,-not guilty,—or a former conviction or acquittal;-the forms of which are given. (Sec. 363-374.)

The existing practice, in respect to the removal of an indictment before trial, is proposed to be abolished. By the present statutes, an indictment may be removed from a court of sessions to the court of oyer and terminer of the same county, by the order of a judge of the supreme court; and an indictment may also be removed by a similar order, from a court of oyer and terminer to the supreme court. In either case, sufficient reasons must be shown for the removal, and when removed, the court may remit the case to the court from which the removal was had. It is proposed, instead of this inconvenient practice, to substitute in all cases a removal by the supreme court, where good cause is shown, into the court of oyer and terminer of the same or another county. The object usually sought by the removal of an indictment into the supreme court, was the change of the venue to another county, where a fair trial could not be had in the county in which the indictment was found; and a removal into the court of oyer and terminer of the same county was ordinarily asked, in consequence of the difficulty of the case. Both these objects are attained, by the uniform mode of procedure proposed in the Code. The application is to made to the supreme court for this purpose, and if sufficient cause be shown, the order of that court removing the cause into the oyer and terminer of the same or another county, is final. (Sec. 275-385.)

The provisions respecting the proceedings on the indictment, before trial, embrace the mode of trial,—the formation of the trial jury,— the calendar of issues for trial,-the postponement of the trial,—and challenging the jury. (Sec. 386-459.) A few general remarks, applicable to such of these provisions as embrace a new principle, will, with the aid of a reference to the sections themselves, sufficiently explain their object. The Commissioners have not designed to depart materially from the existing practice, but have comprehended in this portion of the Code, the substance of the statutory enactments now in force, and have proposed to declare, particularly in reference to challenges to the jury, what they nnderstand to be the rules of the com

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