§ 347. If the court do not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.

§ 348. If the court direct that the case be submitted anew, the same proceedings must be had thereon, as are prescribed in sections 337 and 338.

§ 349. If the demurrer be disallowed, the court must permit the defendant, at his election, to plead; which he must do forthwith, or at such time as the court may allow. If he do not plead, judgment must be pronounced against him.

By the existing practice, a judgment against the defendant upon a demurrer, is final, if the offence charged be a misdemeanor, but otherwise, if it be a felony. See The Queen v. Bowen, 1 C. & K. 501. There seems to be no good reason why, in either case, the defendant should not be permitted to plead; and this section proposes to modify the rule accordingly.

§ 350. When the objections mentioned in section 342, 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 public offence, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.

It is a well established principle, that consent cannot give jurisdiction, where the court does not already possess it, over

the subject of the indictment and the portion of this section, which provides that that objection may be taken at the trial or in arrest of judgment, is declaratory of the common law.

The other branch of this section, which allows the objection, that the facts stated do not constitute a public offence, to be taken at the trial or in arrest of judgment, is equally proper, but for a different reason. Nothing can be more idle, than to proceed to the conviction of a defendant, upon a state of facts appearing on the face of the indictment, which would not warrant a legal judgment against him,

CHAPTER VI.

PLEA.

SECTION 351. The different kinds of pleas.

352. Plea, how put in.

353. Its form.

354. Plea of guilty, how put in.

355. It may be withdrawn, by permission of the court.

356. What is denied by a plea of not guilty.

357. What may be given in evidence under it.

358, 359. What is deemed a former acquittal.

360. Conviction or acquittal on indictment for offence consisting of different degrees, when a bar to another indictment.

361. If defendant refuse to answer indictment, plea of not guilty to be entered.

§ 351. There are three kinds of pleas to an indict

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

The only special plea allowed by the code, is that of a former judgment of conviction or acquittal. The reason for this is, that it is not fairly presumable that the prosecution will be required to be informed beforehand of any other matter of defence.

§ 352. Every plea must be oral, and must be entered upon the minutes of the court.

In conformity with the existing practice.

§ 353. The plea must be entered in substantially the following form:

1. If the defendant plead guilty :-"The defendant pleads, that he is guilty of the offence charged in this indictment:"

2. If he plead not guilty :-"The defendant pleads, that he is not guilty of the offence 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 offence charged in this indictment, by the judgment of the court of ——— (naming it,) rendered at (naming the place,) on

These forms are given, (and especially the last,) to obviate the necessity of a demurrer, if the plea, as it might be drawn under the existing rules, should not be substantially sufficient.

§ 354. A plea of guilty can in no case be put in, except by the defendant himself in open court, unless upon an indictment against a corporation; in which case, it may be put in by counsel.

Some doubt has existed as to whether the defendant may, in a case of misdemeanor, plead guilty by counsel. It is safer that this plea be invariably put in, in person, except in the case of a corporation, which cannot appear except by counsel.

§ 355. The court may, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.

§ 356. The plea of not guilty is a denial of every material allegation in the indictment.

§ 357. All matters of fact, tending to establish a defence, other than that specified in the third sub-division of section 351, may be given in evidence under the plea of not guilty.

The last three sections are declaratory of the existing practice. $358. If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, or the indictment were dismissed upon an objection to its form or substance, without a judgment of acquittal, it is not an acquittal of the same offence.

§ 359. When, however, he was acquitted on the merits, he is deemed acquitted of the same offence, notwithstanding a defect in form or substance, in the indictment on which he was acquitted.

The last two sections are substantially the same as 2 R. S., 3d ed. 788, sec. 27, 28.

§ 360. When the defendant shall have been convicted or acquitted, upon an indictment for an offence consisting of different degrees, the conviction or acquittal is a bar to another indictment for the offence charged in the former, or for any inferior degree of that

offence, or for an attempt to commit the same, or for an offence necessarily included therein, of which he might have been convicted under that indictment as provided in sections 501 and 502.

Declaratory of the existing rule.

§ 361. If the defendant refuse to answer the indictment, by demurrer or plea, a plea of not guilty must be entered.

Taken from 2 R. S., 3d ed. 816, sec. 72.

CHAPTER VII.

REMOVAL OF THE ACTION, BEFORE TRIAL.

SECTION 362. Existing writs and proceedings, to remove indictment before trial abolished.

363. When, and in what cases, indictment may be removed before trial. 364. If former trial were had, indictment may be removed before the new trial.

365. Application for removal, how made.

366. Stay of trial, how obtained, to enable defendant to apply for re

moval.

367. Decision on application for stay, to be endorsed on papers and filed.

368. If application for stay be denied, no other application can be made. 369. Violation of last section, a misdemeanor and contempt, and order

of removal to be vacated.

370. Order of removal to be filed, and pleadings and proceedings to be transmitted.

371. Proceedings on removal, if defendant be in custody.

372. Order for removal must be filed, before a juror is sworn. Authority of the court to which indictment is removed.

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