If the defendant in the indictment be already in prison upon another charge, the officer should leave his bench warrant with the keeper of the prison, in whose custody he remains. By this means it will appear upon the calendar that he is charged with two offences, and if acquitted on that for which he was first committed, his discharge will be prevented, and if the offence was committed in another county, he may be sent thither to take his trial.1

And where the prisoner is committed to the custody of the sheriff of the county where the indictment is found, the bench warrant should be left with the sheriff as his authority for the detention of the prisoner. The bench warrant, besides authorizing the arrest of the defendant, contains a clause requiring the keeper of the common jail of the county where the indictment was found, to receive the defendant into his custody, and safely keep him until discharged by law. The officer delivering the prisoner and bench warrant to the sheriff or jailor, generally takes from him a receipt for the body of the prisoner, which is commonly known as a jail receipt.

§ 25. OF THE ARREST OF THE DEFENDANT WHERE HE HAS FLED FROM

THE STATE.

In case the officer holding the bench warrant should learn that the defendant has fled to another State, the method of obtaining his arrest is by a requisition from the governor of this State upon the governor of the State where the prisoner may be found. For the proceedings in obtaining the requisition see the section cntitled, "Of fugitives from justice, and the obtaining of requisitions for the arrest thereof upon the governors of other States."2

§ 26. OF COMPELLING THE APPEARANCE OF CORPORATIONS WHEN

INDICTED.

Instead of arrest by a bench warrant it is provided that when an indictment shall be found against any corporation, a summons against the defendants may be issued and served in the same manner as provided by any statute in civil cases, and if such corporation do not appear according to the summons a distringas may be issued, and levied upon their personal estate and

11 Chit. Cr L., p. 66.

* Ante page, 77,

chattels real, and the issues levied thereon may be ordered to be sold, and the money arising therefrom shall be detained until such corporation appear and plead to the indictment, when it may be paid to them after deducting such costs and expenses incurred as shall be allowed by the court.1

But if such corporation shall neglect to appear and plead to such indictment within two terms after the return of the distringas against them, the court shall order the money levied thereby, after deducting the costs and expenses of the proceedings, to be paid to the county treasurer for the use of the poor of such county.2

§ 27. OF THE ARRAIGNMENT OF THE DEFENDANT.

The grand jury having presented the indictment, and the prisoner having either been previously committed to jail and brought from thence to the court, or having been arrested upon a bench or district attorney's warrant, or having been at large upon bail and presented himself in court, is, as it is technically called, arraigned; that is, according to the old practice, the indictment was read over to him by the clerk of the court, and he was asked whether he was guilty or not guilty of the offence charged against him.3 The term arraignment signifies, calling the defendant to the bar of the court to answer the accusation contained in the indictment.*

In this State it is not usually the practice to read over the indictment to the prisoner by the clerk; he is generally informed by the district attorney in open court that he has been indicted for a certain offence, naming it, and stating generally the leading facts charged in the indictment in relation to the time and place, where the offence is alleged to have been committed, and the circumstances attending the commission of the offence as stated in the indictment, and is then asked by the district attorney whether he demands a trial upon such indictment.

Our statutes provide that, upon any defendant being arraigned upon an indictment, it shall not be necessary to ask him how he shall be tried, and instead of being required to say whether he

pleads guilty or not guilty, he shall be required to say whether he demands a trial upon such indictment, and he may answer that he does require such trial, and for the purpose of all further proceedings such answer shall be deemed equivalent to a plea of not guilty. 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 shall be entered by the court, and the same proceedings in all respects shall be had as if he had pleaded not guilty to such indictment.1

The object of an arraignment of a defendant is to establish his identity. It is a valid arraignment if the defendant is put to the bar of the court to answer and when so brought holds up his hand, and by subsequent acts admits his identity.2

The prisoner having been arraigned, besides his general plea of not guilty, either by demanding a trial or by refusal to plead or answer, may likewise demur to the indictment or answer by the following pleas, viz.: By a plea to the jurisdiction; by a plea in abatement to the indictment for some defect contained in it, or by a plea in bar. Or he may move to quash the indictment, or to postpone the trial of it, or may proceed to a trial before a petit jury. These various methods of proceeding upon the part of the prisoner will be taken up and separately considered.

§ 28. PERSONS IMPRISONED ON CONVICTION MAY BE ARRAIGNED AND

TRIED FOR AN OFFENCE COMMITTED IN PRISON.

The court in which any indictment is pending against any person imprisoned on conviction of a crime in any county jail or State prison, for an offence committed during such imprisonment, is authorized to issue a writ of habeas corpus for the purpose of bringing the individual so indicted before the court for arraignment or trial on such indictment.3

So, also, the court in which any indictment is pending for a felony against any person, imprisoned on conviction of a crime in any county jail or State prison, is authorized to issue a habeas corpus for the purpose of bringing the individual so indicted before such court for arraignment or trial on such indictment.*

§29. DEFENDANT ENTITLED TO COPY OF THE INDICTMENT. At common law the defendant was not, in cases of treason or felony, entitled to a copy of the indictment.1 Our Legislature have done away with this harsh rule by the following enactment: Every person indicted for any offence, who shall have been arrested upon process issued upon such indictment, or who shall have duly entered into recognizance to appear and answer to such indictment, shall, on demand and on paying the fees allowed by law therefor, be entitled to a copy of the indictment, and of all endorsements thereon.2

A counsel has no right to demand a copy of the indictment of the district attorney. The clerk of the court will furnish it, on payment of fees.3

§ 30. INDICTMENTS, WHEN AND HOW QUASHED.

In all cases where an indictment is so defective that any judg ment to be given upon it against the defendant would be erroneous, the court, in its discretion, may quash it.4

The application to quash the indictment may be made to the court either by the prosecutor or the defendant, or any one as amicus curia may suggest the error to the court, in order that it may exercise its discretion."

It is provided by statute that if there be at any time pending against the same defendant two indictments for the same offence, or two indictments for the same matter, although charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed."

The mere finding of a second indictment is pot per se a supersedeas to the first indictment. A motion to quash must be made, and made, too, before the trial on the first indictment has commenced; at all events, before the cause is submitted to the jury; and ordinarily the motion to quash must be made previous to plea pleaded or any evidence given in the case."

* Peo. v. Warner, 1 Whee. Cr. Cas., 140.

2 Hawk., ch. 25, § 146; Peo. v. Eckford, 7 Cow., 535.

Arch. Cr. Pr., vol. 1, § 102; Comb., 13.

After a second indictment for the same matter charged in the first indictment, the defendant may waive his right to have the first indictment quashed by pleading guilty under it.1

A motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception, and the motion will be granted where the insufficiency is clear.2

Courts will not entertain a motion to quash the indictment or erase it from the docket except for defects appearing upon the face of the proceedings.3

Such a motion should not be allowed to prevail in a doubtful case, but only where the insufficiency of the indictment is so palpable as clearly to satisfy the presiding judge that a verdict thereon would not authorize a judgment against the defendant. It is due to the State and to the rights of the citizen, to have the facts inquired into by a jury, and if the facts charged be affirmed by their verdict, the defendant can have the same advantage of legal points upon a motion in arrest as upon a motion to quash.1

And the defect in general must be very gross and apparent to induce the court to dismiss the indictment in this summary way, instead of leaving the party to the more usual remedies of demurring or moving in arrest of judgment.

When the court in which the indictment was found, had no jurisdiction, the indictment will be quashed. So, also, where the indictment charged an offence in August in the county of W, and the law creating the county of W did not pass until the November following, the indictment was quashed.7

Where the offences are public in their consequences, and seriously affecting the rights and interests of large classes of the community, the courts have refushed to quash the indictment, although in some cases it was said to be defective.

Thus the court refused to quash an indictment against a num

↳ Peo. v. Barry, 4 Park., 657; 10 Abb., 225.

* Com. v. Eastman, 1 Cush., 189; Vol. 1, Arch. Cr. Pr., § 102; Peo. v. Eck-, ford, 7 Cow., 535.

• Wickwire v.

4

The State, 19 Conn., 477; 1 Pa., State R., 105.

⚫ Com. v. Eastman, 1 Cush., 189; 8 Halst., 299; 4 Yeates, 69; State v. Smith,

1 Murphy, 213.

2 Hawk. C., 25, § 146, notes; Cro. Car., 147; Fost., 104; 1 Blac. Rep., 275; Dougl.. 240, 241,