indictment was found by an illegally constituted grand jury, or was not endorsed, "A true bill," or if the indictment is defective in either form or substance, a motion to quash is in order. Motions to quash should be made and disposed of before a plea of not guilty is entered.

§ 51. Demurrer to the indictment. By a demurrer, the accused person calls upon the court to decide whether the matters charged in the indictment amount to a crime. This question is often raised by a motion to quash, which may be the safer method; for it was formerly held that a demurrer admitted the facts charged in the indictment, and that if it was overruled a sentence might be entered without a trial (5). In this country defendants are generally permitted to plead over, after the demurrer is overruled, except perhaps in case of misdemeanors.

§ 52. Plea of former jeopardy: Autrefois acquit: Autrefois convict. This plea is known by various names. It is to the effect that the accused had previously been put in jeopardy or tried for the same matter. At common law, there were two pleas of this nature, autrefois acquit, and autrefois convict (meaning formerly acquitted or convicted of the same crime).

The Constitution of the United States provides that no person shall be twice put in jeopardy for the same offense. Similar provisions are in the constitutions of the various states. If a person has been accused in such a manner as to sustain a conviction and put on trial, he is in jeopardy and cannot again be placed in jeopardy for

(5) 4 Bl. Com. 334.

the same matter unless a mistrial from necessity results. If the hearing is before a judge without a jury, jeopardy begins with the oath administered to the first witness. If the trial is by jury, jeopardy begins with swearing in a juror to try the case. Thus, if but one juror is sworn to try the case, the accused is placed in jeopardy, and if the case proceeds no further he is forever acquitted of that charge. However, where there has been a mistrial from necessity, such as the incapacity of the judge, the death of the judge, the necessary discharge of a juror, the serious illness of the defendant, or inability of the jury to agree, it is treated as no jeopardy. A plea of once in jeopardy is not good unless the previous prosecution was a valid one, but the fact that the prosecution was irregular in the first case is not enough to prevent the former jeopardy being a defense afterwards, if the former proceeding would sustain a conviction. In Mississippi a man was indicted for murder and found guilty of manslaughter. The supreme court held that, as a grand jury which found the indictment was illegally formed, the entire proceeding was void and that a new indictment for murder could be had (6). The defense is perfect although the acquittal was by order of the court erroneously made.

If the defendant asks that the jury be excused or after conviction asks for and obtains a new trial he thereby waives his privilege and may be again put on trial. Where one is indicted on several counts, or for one offense including others, it has been a matter of serious

(6) Kohlheimer v. State, 39 Miss. 548.

debate whether upon conviction of one of the offenses and acquittal of the rest, he could, after a new trial granted at his request, be put on trial for all of the offenses charged before. The majority of the courts hold that by asking for a new trial he has only waived the privilege as to the charge upon which he was convicted on the first trial.

§ 53. The same offense. In order to make this defense available, the second prosecution must be for the same offense as the first; and what constitutes the same offense is often a matter of considerable doubt. If crimes are so distinct that evidence of the one will not support the other, it is inconsistent with reason and repugnant to the rules of law to say that they are so far the same that an acquittal of the one will bar a prosecution for the other. Therefore the rule has come to be recognized that the test of identity is to ascertain whether the defendant might have been convicted on the first indictment by proof of the facts alleged in the second. The question is not whether the same facts are offered in proof to sustain the second indictment as were given in evidence on the trial of the first, but whether the facts are so combined and charged in the two indictments as to constitute the same offense. It is not sufficient to say, in support of a plea of autrefois acquit, that the transaction or facts on which the indictments are based are the same. It is necessary to go further and to ascertain whether they are so alleged in the two indictments as to constitute not only the same offense in degree or kind, but also that proof of the same facts offered to sustain the second indictment would have well supported the first.

In Illinois John Guedel was indicted for killing Adam Zimmerman by shooting him. The jury found a verdict of not guilty. Guedel was then indicted and convicted for killing the same man by striking him with a gun. The supreme court held the second conviction proper, for as the evidence necessary to sustain the second indictment would not have been proper under the first indictment, he was not placed twice in jeopardy for the same offense (7).

§ 54. Plea of not guilty. By a long-established practice, the plea of not guilty is regarded as a denial of every material allegation in the indictment. It is a denial of the venue, the act, and the intent. It makes an issue that covers the entire indictment, and requires the prosecution to make full proof, and that beyond all reasonable doubt. Under this plea the defendant may introduce evidence to show self-defense, insanity, or any other legitimate matter of defense. However, in several states statutes have been enacted, requiring insanity to be specially pleaded. It is a well established rule that, until a plea of not guilty is entered, there is no issue upon the merits of the case to try. If a trial is had without a plea, a verdict of guilty will not stand (8). So it is now provided by the statutes of various states that, if a defendant fails or refuses to plea, a plea of not guilty shall be entered in the records of the court by the clerk.

§ 55. Bills of particulars. Either before or after a plea of not guilty, the accused may move for a bill of particulars. A bill of particulars does not cure defects in an in

dictment, but simply renders the charges more specific. If an indictment alleges that the accused, being the clerk of A, received from B a check for A and converted it to his own use, and if it appears that at various times, the accused had received from B similar checks, the court should require the prosecutor to file a bill of particulars, stating which check is in question. When a bill of particulars is filed the testimony must conform to its specifications, or the case fails.

§ 56. Plea of guilty. A plea of guilty is a solemn and unqualified admission of guilt, both as to the commission of the act and the intent charged. It should never be tendered or accepted as a matter of form. If a defendant, protesting his innocence, offers to plead guilty, the offer should be rejected. The law does not punish a man at his own request; it should only punish him when he is found guilty on the evidence, or when he unqualifiedly and in open court declares that he is in fact guilty. It occasionally occurs that the prisoner is mistaken as to the consequences of his wrongful act, or the light in which the law views it, or the nature of the indictment, and offers to plead guilty when in fact he is not guilty. Some years ago a prisoner by the name of Jersey was arraigned in court upon an indictment for murder. He pleaded guilty. The judge asked him a few questions, and then directed the clerk to enter a plea of not guilty. Upon the trial Jersey was found not guilty. It seems that he had nothing to do with the homicide, but had aided in disposing of the dead body. He was an accessory after the fact, but,