As the effect of a nolle prosequi is to put the defendant without day upon that indictment, he becomes, while he is so, amenable on another indictment, in any court having jurisdiction of the offence.1

The defendant may be found guilty on one of several counts, and a nolle prosequi be entered as to the rest.2

A nolle prosequi may also be entered as to one of several defendants at any time before the trial.3

Where the defendant is charged with receiving knowingly stolen goods, and in the same indictment it is alleged that he had before been convicted of the like offence, and the jury brought in a general verdict on such indictment, it was held that a nolle prosequi as to the aggravation laid by the allegation, that there had been a former conviction for a like offence might be entered.4

A nolle prosequi cannot be entered to part of a single count in an indictment, but it may be as to the whole of the indictment, or to any one or more of several counts in it, and a court of sessions has no power to direct a nolle prosequi to be entered on an indictment pending therein for an offence not triable in that court.5

§ 34. OF PLEAS BY THE PRISONER.

The answer which the defendant makes to the indictment is generally known by the name of his plea. The pleas of guilty and not guilty are delivered orally in court by the prisoner, and entered by the clerk upon its minutes. Special pleas and pleas in abatement require legal skill in framing them, so as to meet the exigencies of the case, and are written out by the counsel for the prisoner; although they may be, any of them, pleaded ore

tenus.

It is provided by statute that no plea in abatement, or other dilatory plea to an indictment, shall be received by the court unless the party offering such plea shall prove the truth thereof by affidavit or by some other evidence."

The statute further provides that, where any matter shall be

'State v. McNeil, 3 Hawk. S., 183; State v. Haskett, Riley 97.

' Com. v. Stedman, 12 Metc., 444.

pleaded to an indictment as having occurred in any other county than that in which such indictment was found, it shall be tried in the same manner as if had been alleged to have occurred in the county where such plea is tendered.1

The pleas which most generally occur in ordinary practice, are the general issue of not guilty, and the special pleas of autrefois acquit, autrefois convict and pardon; although pleas in abatement are quite frequently to be met with.

§ 35. THE GENERAL ISSUE.

By the general plea that he is not guilty of the treason or felony alleged against him, the defendant denies the truth of the whole charge, and he may give his special defence in evidence though the matter of fact be proved against him.2

In ordinary cases the defendant proceeds to trial upon the merits of this plea.

Under this plea, upon the defendant's giving special matter of excuse or justification in evidence, the jury are as much bound to take notice of it as if it had been specially submitted to their consideration by a special plea.3

Thus if a person indicted for the unlicensed sale of intoxicating liquors wishes to admit the selling, and rely upon a license for his defence, he should not plead the matter specially in this way; but his special defence is to be made on the general plea of not guilty.1

By our statute if the defendant refuse to plead or answer, and in all cases where he does not confess the indiciment 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."

Under a plea of not guilty the defendant cannot avail himself of the fact that he has been indicted by the wrong name, nor that he has had a former trial and sentence; and he can only give in evidence whatever negatives the allegations in the indict

1 2 R. S., 731, § 76.

1 Stark., Crim. Pl., 2d ed., 338, 339.

1 Stark., Cr. Pl., 2d ed., 339; Rex v. Banks, 1 Esp., 144.

1 Bish. Cr. Pro., 466; Peters v. State, 3 Greene, Iowa, 74.

2 R. S., 730, § 74; vide title, "Of Arraignments," ante page 263.

Peo. v. Smith, 1 Park., 329.

"Peo. v. Benjamin, 2 Park., 201.

ment or complaint, and matters of excuse or justification, for where after pleading not guilty, anything occurs available as a defence, the defendant can only avail himself of it by a subsequent plea.1

Where a defendant had been duly arraigned, and by acts, if not by words, had demanded a trial, and had procured the cause to be set down for trial, and had challenged jurors, produced witnesses, and examined and cross-examined witnesses on both sides, and had summed up the case to the jury, after a verdict of guilty, a motion in arrest of judgment on the ground that a formal plea of not guilty was put in, was denied.2

After a defendant has pleaded not guilty to an indictment, and the cause has been partially tried, it is too late for him to object to the mode in which the grand jury which indicted him was organized.3

§ 36. THE PLEA TO THE JURISDICTION.

By this plea the defendant denies wholly the right of the court to try him. After this plea has been made and overruled by the court, the judgment should in all cases be to answer over to the charge in the indictment.4

If the offence were committed out of the jurisdiction of the court, he may take advantage of it under the general issue; or if the objection appear upon the face of the record, he may demur to it, or move in arrest of judgment, or bring writ of error.6

§ 37. OF THE DEMURRER TO THE INDICTMENT.

By a demurrer, the defendant refers it to the court to pronounce whether, admitting the matters of fact alleged against him to be true, they do in point of law constitute him guilty of an offence sufficiently charged against him.7

Formerly a demurrer to the indictment was unusual, because the defendant might have the same advantage of objecting by

1 Peo. v. Benjamin, 2 Park., 201.

Peo. v. Frost, 5 Park., 53.

Peo. v. Griffin, 2 Barb., 427.

Rex v. Hollis, 1 Trem. P. C., 302.

• 6 East., 583.

Russ. & Ry. C. C., 158.

1 Bish. Cr. Pro., 419.

C. P.-18.

motion in arrest of judgment or writ of error. But by an English statute certain defects in indictments were cured by verdict; hence they therefore could only be taken advantage of by demurrer.1

The term demurrer signifies that the party will go no further, because the indictment or proceedings are defective in substance or informal in substance.2

A demurrer in criminal cases has the effect of opening the whole record to the court, and therefore, upon arguing it, the defendant may take objections as well to the jurisdiction of the court, where the indictment was found as to the subject matter of the indictment itself.3

(a) In felonies not capital, it seems to be doubtful whether the judgment is final or merely a judgment of respondeas ouster. In one case of a felony not capital, upon the defendant's counsel being about to demur, FINDAL, C. J., cautioned him, saying that he might be bound by his demurrer, and not allowed to plead He did not actually deliver an opinion upon the point, but expressed great doubt upon it, and the prisoner's counsel thereupon declined to demur, and the prisoner pleaded not guilty. HAWKINS says that in criminal cases not capital, if the defendant demur to the indictment, the court will not give judgment against him to answer over, but final judgment.5

over.

BLACKSTONE says it appears the most reasonable that the defendant in such cases shall be directed and required to plead the general issue after a demurrer determined against him, because it is clear that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court, whether it be felony or no, and upon the fact thus shown it appears to be felony, the court will not record the confession, but admit him afterwards to plead not guilty."

In a late English case it was held in felonies, that on a general demurrer, judgment for the crown was final, inasmuch as the defendant thereby confessed all the material facts charged

'Stat. 7, G. IV, ch. 64, § 20; R. v. Fenwich, 2 Car. & K., 915; Arch. Cr. Pr., vol. 1, § 115.

against him in the indictment; but in cases of demurrer of a special nature, usually called demurrer in abatement, the court thought it might be otherwise, and the judges intimated that the various dicta which appeared in the books in opposition to the above ruling were probably to be accounted for by this distinction not having been sufficiently attended to.1

(b) In capital cases the defendant is not concluded by the judg ment on the demurrer, but if the judgment be against him, he may still plead not guilty, and where a defendant in such case demurs, it is usual for him at the same time to plead over to the felony.2

(c) In misdemeanors the judgment upon demurrer is final, and not merely that the defendant shall answer over;3 but by the permission of the court he may plead over.1

In the United States, however, the English rule seems to have been disregarded in such cases where there is, on the face of the pleading, no admission of criminality on the part of the defendant, and to give judgment quod respondeat ouster.5

(d) The demurrer may be pleaded ore tenus on whichever side the objection arises, and in capital cases and by some authorities in felonies, the defendant may either demur and at the same time plead over to the felony, or may take the latter course after the demurrer is found against him."

Demurrers are seldom used, since the same advantages may be taken upon a plea of not guilty.7

The same rule of pleading applies to criminal and civil cases, that the party committing the first fault shall have judgment rendered against him. Thus where the People demurred to the defendant's plea of a former acquittal, the indictment having proved bad, it was held that irrespective of the question of the sufficiency of the plea, the defendant was entitled to judgment.

1 R. v. Faderman, 1 Den. C. C., 565; Vide Roscoe's Cr. Ev.; R. v. Duffy, 4 Cox C. C., 24; 1 Den. C. C., 293, et seq.; 7 Cox C. C., 85, 86.

Vol. 1, Arch. Cr. Pl., § 115; R. v. Phelps, Car. & M., 180; Idem., 299. 'R. v. Gibson, 8 East., 112.

R. v. Binghamton R. R., 3 Q. B., 224; 43 E. C. L. R.

Arch. Cr. Pr., vol. 1, § 115, note; Com. v. Goddard, 13 Mass., 456; 8 Watts & Serg., 77; 3 Pa. Rep., 262.

1 Chit. Cr. Law, 440; Fost., 105; 4 Blac. Com., 334; 2 Hale, 257; 8

East., 112.

4 Blac. Com., 334.

* Peo. v. Krummer, 4 Park. 217; Vide Id., 386.