abatement, by demurring to the indictment, or pleading in bar or the general issue. (1)

In Kentucky, a "motion to set aside the indictment" can be made only on the following grounds: 1. A substantial error in the summoning or the formation of the grand jury. 2. That some person other than the grand jurors was present before the grand jury when they acted upon the indictment. 3. That the indictment was not found and presented as required by the code. (2)

In Indiana, the court may quash an indictment on motion when it appears upon its face either: 1. That the grand jury had no legal authority to inquire into the offense charged. 2. That the facts stated do not constitute a public offense. 3. That the indictment contains any matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution.(3)

In Illinois, all exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment or writ of error shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment. No indictment shall be quashed for the want of the words "with force of arms," or of the occupation or place of residence of the accused, nor by reason of the disqualification of any grand juror.(4)

In Iowa, a "motion to set aside an indictment" made by the defendant must be sustained: 1. When the indictment is not indorsed "a true bill" by the foreman of the grand jury. 2. When the names of all the witnesses examined before the grand jury are not indorsed on the instrument; also where the minutes of the evidence of the witnesses examined before the grand jury are not returned with it. 3. When it has not been presented and marked "filed" as prescribed by the code. 4. When any person other than the grand jurors was present before the grand jury when the question was taken upon the finding of the indictment,

(1) 74 Ohio L. 341.

(3) Rev. Stat. (1876), p. 399,

(2) Crim. Code. ? 158.
(4) Rev. Stat. (1877), p. 403

or when any person other than the grand jurors was present before the grand jury during the investigation of the charge, except as required or permitted by law. 5. That the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law. A motion made on the ground of error in the indorsement of the names of witnesses will be overruled if the error is corrected. As a person "held to answer," that is, committed or bound over by a magistrate after a preliminary examination, has under the code the right to challenge the array of the grand jury or any member of it, no such person is allowed to base his motion on the fifth ground. (1)

In Michigan, no indictment shall be quashed: 1. For the omission or misstatement of the occupation, estate, or degree of the defendant, or of the name of the city, township, or county of his residence. 2. For the omission of the word "feloniously" or of the words "with force and arms," or any words of similar import. 3. For omitting to charge any offense to have been committed contrary to the form of the statute or statutes. 4. For any other defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant. (2) It is also provided that every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash before the jury shall be sworn; and the court may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, and thereupon the trial shall proceed as if no defect had appeared.(3)

When the motion to quash is granted, the court, in Kentucky, must, and in Ohio and Iowa may, commit the defendant, or admit him to bail, that the charge may be again submitted to the grand jury, if in session, or to another, if it is already discharged.]

iii. Special pleas in bar.-These are termed "special" to distinguish them from the general issue; and “in bar” because they show reason why the defendant ought not to

(1) Rev. Stat. (1873), p. 674. (2) Rev. Stat. (1871), pp. 2169, 2170 (3) Ibid., p. 2172.

answer at all, nor put himself upon his trial for the crime alleged, and thus they are distinguished from dilatory pleas which merely postpone the result.

All matters of excuse and justification may be given in evidence under the general issue; therefore it is hardly ever necessary to resort to a special plea in bar, except in the four cases to be examined more in detail.(q)

If judgment on a special plea in bar is given against the defendant in a felony, it is to the effect that he make further answer (respondeat ouster); but as he generally pleads, at the same time, the general issue, when such judgment is given against him the jury proceed to inquire into his guilt, as if the special plea had not been pleaded. If the plea is established in his favor he is discharged. In misdemeanors the judgment is final, so that if it is against the defendant he is considered guilty of the offense; if for him, he is discharged.

(a.) Autrefois acquit.-When a person has been indicted for an offense and regularly acquitted, he can not afterward be indicted for the same offense, provided that the indictment were such that he could have been lawfully convicted on it. It is against the policy of the English law that a man should be put in peril more than once for the same offense. And, therefore, if he is indicted a second time, he may plead autrefois acquit, and thus bar the indictment. It is frequently a difficult matter to determine whether the second indictment bears such a relation to the first, that the latter is a bar to the former. The true test seems to be this: Whether the facts charged in the second indictment would, if true, have sustained the first.(r) An acquittal for murder may be pleaded in bar of an indictment for manslaughter, and vice versa. So with larceny and embezzlement; robbery, and assault with intent to rob; felony,

(q) "In fact, the only instance in which a special plea in bar seems requisite in criminal cases is, where a parish or county is indicted for not repairing a road or bridge, etc., and wishes to throw the onus of repairing upon some person or persons not bound of common right to repair it."-Arch. 135.

(r) R. v. Vandercomb, 2 Leach, 708.

and an attempt to commit the felony. But an acquittal for lar ceny is no bar to an indictment for false pretenses; nor will an acquittal as accessory bar an indictment as principal, and vice versa. Nor, again, is an acquittal on a charge of stealing "certain goods" on the ground that such goods are a fixture in a building, a bar to an indictment for stealing the fixture (r).

The prisoner must satisfy the court: first, that the former indictment, on which an acquittal took place, was sufficient, in point of law, so that he was in jeopardy upon it; [and he must satisfy the jury] secondly, that, in the indictment, the same offense was charged, for the indictment is in such a form as to apply equally to several different offenses: (8) [thirdly, of his identity with the defendant in the former prosecution]. To prove his acquittal he may obtain a certificate thereof from the officer or deputy having custody of the records of the court where the acquittal took place (t).

(b). Autrefois convict.-A former conviction may be pleaded in bar of a subsequent indictment for the same offense; and this, whether judgment were given or not. The same rules as in the plea of autrefois acquit generally apply; thus there is the same test as to the identify of the crime.

[The plea of former conviction need not aver that judgment was rendered on the verdict; for, if judgment were so rendered, the appropriate plea was formerly, when the forms were established, autrefois attaint; and, if the verdict of guilty had been set aside, that was matter for replication by the prosecution. There would seem to be as good reason for holding a plea of former acquittal sufficient, without averring judgment thereon; for a verdict of acquittal is a finality-it operates as a discharge of the accused, and judgment thereon is a matter of course. The English rule, however, is that the plea of former acquittal should aver judgment on the verdict. (1) But in the United States, it

(r) R. v. O'Brien, 46 L. T. N. S. 177.

(s) Parke, B., in R. v. Bird, 2 Den. 94, 98; [Bainbridge v. State, 30 Ohio St. 264; State v. Small, 51 Mo. 197.]

(t) 14 and 15 Vict., c. 99, 2 13.

(1) 2 Hale P. C. 243; Rex v. Sheen, 2 C. & P. 634, where the form of the plea is commended by the court.

is generally held that judgment need not be averred in a plea of former acquittal.(1)

The constitution of the United States provides that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb. The equivalent provision in the state constitutions is more commonly in the form that no person shall be put in jeopardy twice for the same offense. In Iowa, it is: No person shall, after acquittal, be tried for the same offense. Jeopardy begins when the trial jury is sworn. If, after that, without assent of the defendant, the prosecuting attorney enters a nolle prosequi, or the court, without sufficient cause, discharges the jury, the effect is the same as an acquittal; the defendant is finally discharged, and can not be tried again. The defense of "once in jeopardy" is therefore broader than the strict. plea of "former acquittal." Forms of plea in such case are given in Wharton's Precedents, Form 1157, and 1 Bishop on Criminal Procedure, § 585. Such defense and forms, however, are undoubtedly included in the general designation, "plea of former acquittal."

"Legal jeopardy does not arise, if the court has no jurisdiction of the offense. Commonwealth v. Peters, 12 Metc. (Mass.) 387; Commonwealth v. Goddard, 13 Mass. 455; People v. Tyler, 7 Mich. 161.

"Nor is such party put in legal jeopardy, if it appears that the first indictment was clearly insufficient and invalid. Commonwealth e. Bakeman, 105 Mass. 53; Gerard v. People, 3 Ill. 362; People v. Cook, 10 Mich. 164; Mount v. Commonwealth, 2 Duv. (Ky.) 93.

Nor if, by any overruling necessity, the jury are discharged without a verdict. United States v. Perez, 9 Wheat. 579; People v. Goodwin, 18 Johns. 187; Commonwealth v. Bowden, 9 Mass. 494; Commonwealth v. Purchase, 2 Pick. 521.

"Nor is such party put in legal jeopardy, if the term of court, as fixed by law, comes to an end before the trial is

(1) Dictum in State v. Elden, 41 Maine, 15; State v. Benham, 7 Conn. 414; West v. State, 2 Zabrisk. 212; State v. Novell, 2 Yerg. 24; Mount v. State, 14 Ohio, 295.