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$129. Proceeding

sion ordered.

submitted, the same proceedings must be had thereon as Oct. 19, 1864, are prescribed in sections 1317 [118] and 1318 [119]. § 1329. [130.] If the demurrer be disallowed, the if resubmis court must permit the defendant, at his election, to plead, a., § 130. which he must do forthwith, or at such time as the court Proceeding if may allow; but if he do not plead, judgment must be disallowed. given against him.

266; People v. Jocelyn, 29 Id. 562. No
constitutional right of the defendant
is violated by the entry of a judg-
ment against him if he refuses to
plead after demurrer overruled: Id.

demurrer be

$131.

Refusal to plead after demurrer overruled. - Where a demurrer is overruled, and the defendant refuses to plead, judgment may be pronounced against him as upon a plea of guilty: People v. King, 28 Cal. § 1330. [131.] When the objections mentioned in Oct. 19, 1864, section 1322 [123] appear upon the face of the indictment, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial, under the plea of not guilty and in arrest of judgment.

Objections to be taken advantage of by demurrer: A demurrer upon any of the grounds enumerated in § 1322 [123], ante, presents the objection to the sufficiency of the indictment or information. It must be in writing, distinctly specifying the grounds of objection, and must be interposed prior to the joinder of issue of fact by plea. Unless so interposed, any of the objections mentioned that appear upon the face of the indictment or information are waived, and cannot be taken advantage of upon the trial or in arrest of

judgment; excepting, however, the
objection to the jurisdiction of the
court or its jury, as provided in subd.
1 of § 1322 [123]; and that a public
offense has not been charged, which
may be taken advantage of at any
time: State v. Doty, 5 Or. 49; State v.
Dougherty, 4 Id. 200; State v. Bruce, 5
Id. 68; People v. Josephs, 7 Cal. 129;
People v. Apple, 7 Id. 289; People v.
Shotwell, 27 Id. 394; People v. Garnett,
29 Id. 622; People v. Jim Ti, 32 Id. 60;
People v. Burgess, 35 Id. 115; People
v. Turner, 39 Id. 370; People v. Swen-
son, 49 Id. 388.

CHAPTER XII.

OF PLEAS TO THE INDICTMENT.

§ 1331. The different kinds of pleas

§ 1332. Plea, how put in, and its form.

When objections, being murrer, may the trial or in

ground of de

be taken at

judgment.

18 Or. 362. 20 Or. 236.

§ 1333.

§ 1334.

Plea of guilty must be put in in person, except in case of corporation.
Plea of guilty, when and how withdrawn.

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§ 1339.

Conviction or acquittal on indictment for crime consisting of differ.
ent degrees, when a bar to another indictment.

Oct. 19, 1864, § 132.

Pleas to indictment, different kinds of.

Oct. 19, 1864, 133.

Plea, how to put in and

its form.

Oct. 19, 1864, $134.

Plea of guilty must be put in

in person,

except in case

of corporation.

Oct. 19, 1864, $135.

§ 1331. [132.] There are three kinds of pleas to an indictment; a plea of,

1. Guilty;

2. Not guilty;

3. A former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of not guilty.

§ 1332. [133.] Every plea must be oral, and must be entered on the journal of the court in substantially the following form:

1. If the defendant pleads guilty: "The defendant pleads that he is guilty of the crime charged in this indictment ";

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2. If he pleads not guilty: "The defendant pleads that he is not guilty of the crime charged in this indictment"; 3. If he plead a former conviction or acquittal: "The defendant pleads that he has already been convicted (or acquitted, as the case may be) of the crime charged in this indictment, by the judgment of the court of (naming it), rendered at (naming the place), on the

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§ 1333. [134.] A plea of guilty must in all cases be put in by the defendant in person, in open court, unless upon an indictment against a corporation, in which case it may be put in by counsel.

Plea must be oral. — In criminal cases every plea must be oral, and entered in the minutes of the court. It cannot be in writing: People v. Johnson, 47 Cal. 122; People v. Redinger, 55 Id. 298. Until a plea has been entered, there is no issue for the jury to try, and a verdict in a case where there has been neither an arraignment nor plea is a nullity, and no valid judgment can be rendered

thereon: People v. Corbett, 28 Cal. 328; People v. Gaines, 52 Id. 479; Douglass v. State, 3 Wis. 820; State v. Saunders, 53 Mo. 234; State v. Montgomery, 63 Id. 296. Though no judg ment is pronounced upon a plea of guilty, it is a good defense if pleaded to another indictment for the same offense: People v. Goldstein, 32 Id. 432.

Former jeopardy, etc.: See $$ 1337-1339 [138-140], post.

§ 1334. [135.] The court may, at any time before judgment, upon a plea of guilty, permit it to be withwhen and how drawn, and a plea of not guilty substituted therefor.

Plea of guilty,

withdrawn.

Withdrawing plea. Permit ting the defendant to withdraw a plea of not guilty, for the purpose of demurring to the indictment, or of mov

ing to set it aside, is a matter vested largely in the discretion of the trial court, and its ruling will not be disturbed unless there has been a mani

fest abuse of such discretion: People v. Lee, 17 Cal. 76; Morton v. People, 47 Ill. 468; State v. Kraft, 10 Iowa, 338. When it appears that a plea of guilty has been entered through inad vertence and without due deliberation, or ignorantly, and mainly from the hope that the punishment to which the accused would otherwise be exposed may be mitigated, great indulgence should be shown in permitting such plea to be withdrawn. Refusal to allow the defendant to withdraw his plea of guilty under such circumstances will amount to an abuse of the discretion vested in the trial court: People v. McCrory, 41 Cal. 458.

So

where there was doubt of the sanity Oct. 19, 1864,
of the accused at the time his plea of $135.
guilty was entered, the court ought to
have allowed him to withdraw it and
plead not guilty: People v. Scott, 59 Id.
341. See also People v. Lewis, 64 Id.
401, where, after a plea of not guilty,
the court was held to have properly
refused to permit the plea of guilty of
prior conviction to be entered. There
was no abuse of discretion in the
court allowing defendant to with-
draw the plea of not guilty, and to
interpose a demurrer and motion to
set aside the information: People v.
Ah Fook, 64 Id. 380.

guilty, what

controverts.

Id., § 137.

§ 1335. [136.] The plea of not guilty controverts and Id., § 136. is a denial of every material allegation in the indictment. Plea of not § 1336. [137.] All matters of fact tending to establish a defense to the charge in the indictment, other than those specified in the third subdivision of section 1331 [132], may be given in evidence under the plea in evidence of not guilty.

Plea of not guilty. All matters of fact tending to establish a defense, except a pardon, United States v. Wilson, 7 Pet. 150, a former acquittal or conviction, or once in jeopardy generally, may be proved under a plea of not guilty: People v. Ah Lee, 60 Cal. 85, 86; Hirn v. State, 1 Ohio St. 15. Under this plea the insanity of the prisoner at the time of the commission

of the offense may be shown: People
v. Olwell, 28 Cal. 456. So the fact of
drunkenness at the time the crime
was committed may be given in evi-
dence under this plea, not as a de-
fense, but to determine the state or
condition of the mind, and its capacity
to form an intent: People v. King, 27
Id. 507; People v. Soto, 63 Id. 165;
People v. Jones, 64 Id. 168.

Plea of not

guilty, what

may be given

under it.

deemed a

acquittal.

§ 1337. [138.] If the defendant were formerly ac- Id., $138. quitted on the ground of a variance between the indict- What is not ment and the proof, or the indictment were dismissed former upon a demurrer to its form or substance, or discharged for want of prosecution, without a judgment of acquittal or in bar of another prosecution, it is not an acquittal of the same crime.

Variance between indictment 17 Cal. 332; see People v. March, 6 or information and proof. An acquittal of a defendant because of a variance between the proof and the indictment is no bar to a second indictment, if the variance is such that a conviction was legally impossible upon the first indictinent. It being legally impossible to have convicted the defendant, he has never been "in jeopardy": People v. McNealy,

Id. 543. If, however, the variance
is immaterial, an acquittal of the
defendant because of such variance
will bar any subsequent prosecution
for the same offense. An error of
the court in regarding as material
a variance between the allegations
and proof will not render the acquit-
tal less available and conclusive as a
bar to a subsequent prosecution. The

Oct. 19, 1864, 138.

Oct. 19, 1864, $139.

What is

deemed a former acquittal.

Oct. 19, 1864, 140.

question to be determined under the
plea of former acquittal is, Would
the evidence which is necessary to
support the second indictment have
been sufficient to procure a legal con-
viction on the first? If it would, the
acquittal is a bar to a subsequent
prosecution; and if not, it is no bar:
People v. Hughes, 41 Cal. 234. Where
the subject of the assault named in
the information was charged to be
one John Carl, and his real name was
John Carlin, the court may, where
defendant is acquitted on the ground
of variance, direct the district at-
torney to amend his information. If,
however, the court will not so direct,
a new information may be filed with
out the order of court; an appeal by
the district attorney effects nothing,
and will be dismissed: People v. Allen,

61 Id. 140. The mere opinion of a judge, that the evidence shows the defendant to be guilty of a higher degree of crime, does not authorize him to discharge the jury without the defendant's consent, and hold the defendant for the higher offense. Such discharge amounts to an acquit tal, and the defendant cannot be again tried for that offense: People v. Hunckeler, 48 Id. 331.

A variance in the name of the insurance company given in an indictment for arson, to defraud, and that as proved is no ground for an arrest of judgment: People v. Hughes, 29 Cal. 257. Variance in indictment for forgery, the word "shipped" being spelled "shiped" in the original instrument, is immaterial: People v. Cummings, 58 Id. 88.

§ 1338. [139.] When, however, the defendant was acquitted on the merits, he is deemed acquitted of the same crime, notwithstanding a defect in form or substance in the indictment on which he was acquitted.

See note to the preceding section and to the section next following this. § 1339. [140.] When the defendant shall have been convicted or acquitted upon an indictment for a crime consisting of different degrees, such conviction or accrime consist quittal is a bar to another indictment for the crime degrees, when charged in the former, or for any inferior degree of that

Conviction or acquittal on indictment for

ing of different

a bar to another indictment.

crime, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment, as provided in sections 1362 [163] and 1363 [164].

Former jeopardy: See, generally, the two preceding sections and the notes thereto. No person shall be put twice in jeopardy for the same offense: See § 12, art. 1, Oregon Constitution, ante, p. 79. Where an act constitutes two distinct offenses, each is separately indictable, and acquittal or conviction of one will not be a bar to a prosecution for the other: Commonwealth v. Tenney, 97 Mass. 50; State v. Rankin, 4 Cold. 145. Thus it is held that the murder of two persons by the same act constitutes two offenses, for each of which a separate prosecution will lie, and a conviction or acquittal in one

case does not bar a prosecution in the other: Clem v. State, 42 Ind. 420; S. C., 13 Am. Rep. 369; People v. Majors, 2 West Coast Rep. 580; and so of the offense of an attempt to kill two by the same act: People v. Wanan, 1 Park. Cr. 338; or an assault upon several at the same time: State v. Nash, 86 N. C. 650; S. C., 41 Am. Rep. 472. An acquittal or conviction of assault and battery is no bar to a subsequent prosecution for kidnapping, although the two offenses were committed by the same act: State v. Stewart, 11 Or. 238.

But the same offense cannot be split and prosecuted twice: People v. Bur

den, 9 Barb. 467; Moore v. State, 71 Ala. 307. Thus a conviction or acquittal upon an indictment for larceny is a bar to a prosecution for the larceny of property belonging to the same person, and stolen at the same time, but not included in the former indictment. The entire transaction constitutes but one offense, and the defendant cannot be twice put in jeopardy therefor: State v. McCormack, 8 Or. 236. A person who commits an act which is an offense against both the United States and the state in which it is committed, commits two offenses, -one against each of the two sovereignties; and his acquittal or conviction under the laws of the one cannot be pleaded as a defense to a prosecution by the other. Though one act, it is two offenses: United States v. Barnhart, 10 Saw.

491.

As to the effect of conviction or acquittal of one degree of a crime upon a prosecution for a greater or less degree of the same crime, see the note to Roberts v. State, 58 Am. Dec. 540-545. An exception to the rule that this is a bar is where one is con

victed of a battery, and death subse- Oct. 19, 1864,
quently occurs, when a prosecution $140.
for homicide lies: Burns v. People, 1
Park. Cr. 582; Commonwealth v. Evans,
101 Mass. 25.

See the valuable notes, on the sub-
ject of former jeopardy, to State v.
McKee, 21 Am. Dec. 505; Roberts v.
State, 58 Id. 536 et seq.; and an
article in 17 Am. Law Rev. 735.

Where there is a plea of not guilty and also a plea of former conviction, the defendant is entitled to a verdict on each plea. A verdict of guilty is insufficient: People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Id. 567; People v. Fuqua, 61 Id. 377. And where the record is silent, showing no finding by the jury upon the plea of former acquittal, the court will not presume that that defense was withdrawn: People v. Fuqua, supra.

The plea of former conviction must be upon a prosecution for the identical offense. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense: State v. Stewart, 11 Or. 52.

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§ 1341. Issue of law, definition of.

§ 1342. Issue of law or fact, how tried.

§ 1343. When defendant must appear in person on trial.

§ 1340. [141.] An issue of fact arises,—

1. Upon a plea of not guilty; or,

Oct. 19, 1864, $141.

Issue of fact,

2. Upon a plea of a former conviction or acquittal of definition of. the same crime.

§ 1341. [142.] An issue of law arises upon a de- Id., § 142. murrer to the indictment.

§ 1342. [143.] An issue of law must be tried by the court, and an issue of fact by a jury, of the county in which the action is triable.

Issue of law,
definition of.

ta., § 143.
Issue of law or

fact, how tried.

when must

§ 1343. [144.] If the indictment be for a misde- Id., § 144. meanor, the trial may be had in the absence of the de- Defendant, fendant, if he appear by counsel; but if it be for a appear in per felony, he must be present in person.

son on trial.

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