§ 315. Motion. when heard.-The motion to set aside an indictment must be heard at the time of the arraignment, unless, for good cause, the court postpone the hearing to another time. § 316. If denied, defendant must immediately demur or plead, If the motion be denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto. (a) No appeal before filing judgment roll.-No appeal will lie from a motion denied, before the filing of a judgment roll on conviction, even although both parties consent to the hearing of the appeal. People v. Havens, 3 N. Y. Cr. R., 286. § 317. If granted, defendant discharged, unless the case be submitted to the same or another grand jury.—If the motion be granted, the court must order that the defendant, if in custody, be discharged therefrom, or if under bail, that his bail be exonerated or if he have deposited money instead of bail, that the money be refunded to him, unless the court direct that the case be re-submitted to the same or another grand jury. § 318. Effect of order for re-submission.-If the court direct that the case be re-submitted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already ad mitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment. §319. When new indictment not found.-Unless a new indictment be found before the next grand jury of the county or city are discharged, the court must, on the discharge of such grand jury, make the order prescribed by section three hundred and seventeen. § 320. Order to set aside indictment no bar to another prosecu. tion.-An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offense. An arrest of judgment after conviction is not a bar to a second indictment in a case of felony. (People v. Casbords, 13 Johns., 351.) CHAPTER VI. DEMURRER. SECTION 321. Only pleading for defendant is demurrer or plea. 322. Demurrer or plea, when put in. 323. Grounds of demurrer. 324. Demurrer, how put in, and its form. 325. When heard 326. Judgment on demurrer. 327. If allowed, judgment a bar to another prosecution, unless direction that the case be re-submitted to the same or another grand jury. 328. If re-submission not ordered, defendant, discharged. 329. Proccedings, if re-submission ordered. SECTION. 330. If demurrer disallowed, defendant may be permitted to plead; when he must do so, and effect of his omission. 331. When objections, forming ground of demurrer, may be taken at the trial, or in arrest of judgment. § 321. Only pleading for defendant, is demurrer or plea. The only pleading on the part of the defendant is either a demurrer or a plea. § 322. Demurrer or plea, when put in.-Both the demurrer and the plea must be put in, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose. §323. Grounds of Demurrer.-The defendant may demur to the indictment, when it appears upon the face thereof : 1. That the grand jury, by which it was found, had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the county; or 2. That the indictment does not conform substantially to the requirements of sections two hundred and seventy-five and two hundred and seventy-six; or 3. That more than one crime is charged in the indictment within the meaning of sections two hundred and seventy-eight or two hundred and seventy-nine; or 4. That the facts stated do not constitute a crime; or 5. That the indictment contains matter, which, if true, would constitute a legal justification or excuse for the acts charged, or other legal bar to the prosecution. (a) Indefiniteness of indictment.-Indefiniteness of indictment, is no grounds for demurrer. People v. Draper, 1 N. Y., Cr. R. 138. (b) Two offenses when no ground.—It is no ground for demurrer to an indictment that it charged the two offenses of rape, and assault with intent to commit rape. Id. When the act complained of constitutes different offenses such offenses may be charged in separate counts of the indictment, and a demurrer thereto will not lie. People v. Kelly, 3 Cr. R. 272., 1 N. Y. State Rep. 385. (c) Failure to describe offense. —The objection that the indictment does not sufficiently describe the offense, must be taken by demurrer. People v. Carr 3 N. Y., Cr. R. 578. (d) Statute Limitations.-A demurrer cannot be interposed upon the ground that it appears by the indictment that the prosecution is barred by the statute of limitations. People v. Durrin 3 N. Y., Cr. R. 328. (e) When variance between allegation and facts.—When an indictment attempts to set forth an assault in the second degree, but does in fact only show an assault in the third degree, it is not demurrable. People v. Cooper 3 N. Y., Cr. R. 117. (f) Admission of defendants demurring.-Defendants jointly indicted, by demurring to the indictment admit the charge to be true, and thereby waive the objection that they should be individually, instead of jointly charged. People v. Kelly, 3 N. Y., Cr. R. 272. 1 N. Y., State Rep. 385. (g) What objections must be taken.-The objection that an indictment does not conform to sections 275. 276 of the Code of Criminal Procedure, must be taken by demurrer. People v. Conroy, 2 N. Y., Cr. R. 565; 97 N. Y., 62. () Misnomer of crime no ground.-The name of the crime in an indictment is a mere matter of form, which may or may not be stated, and if stated incorrectly it does not vitiate or control the character of the crimes as against 1 specific allegations of fact in the indictment concerning it, and a demurrer will not lie. (People v. Sullivan, 4 N. Y. Cr. R., 193; People v. Clements, 11 N. Y. State Rep., 384.) (i) Grand Larceny and receiving stolen goods.-An indictment containing two counts, one for grand larceny and one for receiving stolen goods, good and a demurrer will not lie. People v. Infield, 1 N. Y., Cr. R. 146. () Lack of innuendo in indictment for libel, demurrable.--An innuen. do is still necessary and essential in an indictment for libel, to explain an ambiguous expression, and its absence will be demurrable. People v. Isaacs 1 N. Y., Cr. R 148. (k) Varying allegations no ground.-An indictment containing varying allegations in its different counts as to the manner and means of the commission of the crime, but which shows upon its face that they all relate to the one and the same transactions, is not demurrable. People v. Cole 2 N. Y.. Cr. R. 108. (1) Two or more felonies not demurable.-A demurrer will not lie to an indictment which alleges two distinct and separate felonies, arising out of the same transaction (Id.) (in) Common law form.-A demurrer will not lie to an indictment which begins in common law form. People v. Peck, 96 N. Y., 650. 2 N. Y., R. 314. (n) Omission of title of the action and name of the court.-A demurrer will not lie to an indictment, which contains neither the title of the action nor the name of the court in which it was found and presented, if it appears that it was found in a proper court and action, and that defendant cannot be prejudiced by the omissions. (Id.) (6) Omission of intent when demurrable.-A demurrer will lie to an indictment under sub div. 5 § 218 Penal Code, which does not allege that the assault was committed with the "intent " People v. Cooper 3 N. Y., Cr. R. 117. (p) Mutilating document.-Demurable on what grounds. People v. Wise 3 N. Y., Cr. R. 303. (g) Joinder of counts under § 94 and § 649. Penal Code demurrable. On what grounds. (Id) (r) Repugnant allegations in indictment demurrable-When. (Id.) (s) Failure to set out document in indictment demurrable-When (Id.) () Misjoinder when not demurrable.-See the People v. Ward 3 N Y., Cr. R. 483. (u) Joinder of several misdemeanors not demurrable.-A demurrer will not lie to an indictment which contains several misdemeanors, where the acts complained of in each count relates to the same crime. (People v. Leahardt, 4 N. Y. Cr. R. 317; People v. O'Donnell, 15 N. Y. State Rep., 141.) § 324. Demurrer, how put in, and its form.-The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it may be disregarded. § 325. When heard.-Upon the demurrer being filed, the objection presented thereby must be heard at such time as the court may appoint. § 326 Judgment on demurrer. The court must give judgment upon the demurrer, either allowing or disallowing it; and an order to the effect must be entered upon the minutes. (a) Judgment on demurrer not reviewable before judgment.—A decision overruling a demurrer interposed to an indictment and directing that adzment be given to the people unless the accused plead over, cannot be reewed upon before a judgment has been entered on the decision. (People v. Beman, 22 Hun, 283.) (Even if both parties agree to it.-No appeal will lie from a motion de nied before the filing of a judgment roll on conviction, even although both parties consent to the hearing of the appeal. (Id.) § 327. If allowed, judgment a bar to another prosecution, unless direction that the case be re-submitted to the same or another grand jury. -If the demurrer be allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection of which the demurrer is allowed may be avoided in a new indictment, direct the case to be re-submitted to the same or another grand jury. § 328. If re-submission not ordered, defendant discharged.—If the court do not direct the case to be re-submitted 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. § 329. Proceedings, if re-submission ordered.—If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections three hundred and eighteen and three hundred and nineteen. $330. If demurrer disallowed, defendant may be permitted to plead; when he must do so, and effect of his omission.-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, if the crime charged is a misdemeanor, otherwise a plea of "not guilty," must be entered. See People v. Code, 2 N. Y. Cr. R. 114. § 331. When objections, forming ground of demurrer, may be taken at the trial or in arrest of judgment. The objections mentioned in section three hundred and twenty-three 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 crime, may be taken at the trial, under the plea of not guilty, and in arrest of judgment. (a) When taken on other than grounds mentioned.-If taken on any other grounds than those mentioned, it will be considered a motion for a new trial on affidavits, and, as such, cannot be considered in a motion in arrest of judgment. (People v. Kelly, 94 N. Y., 526.) (b) Only to be taken on the grounds mentioned.-A motion in arrest of judgment can only be taken under this section, upon some one of the grounds enumerated. (lb.) (People v. Menken, 3 N. Y. Cr. R., 242.) (c) Only for some patent defect.-A motion on arrest of judgment must be for some defect which appears on the face of the record, and cannot be based upon a mere affidavit, showing the existence of extrinsic facts. (People v. Kelly, 2 N. Y. Cr. R., 15; 94 N. Y., 526.) CHAPTER VII. PLEA. SECTION 332. The different kinds of pleas. 333. Plea, how put in. 334. Its form. 335. Plea of guilty, how put in. 336. Plea of insanity. 337. Plea may be withdrawn by permission of the court. 339. What may be given in evidence under it. 340, 341. What is deemed a former acquittal. 342. If defendant refuse to answer indictment, plea of not guilty to be entered. § 332. The different kinds of pleas.-There are three kinds of pleas to an indictment; a plea of 1. Guilty; 2. Not guilty; 3. A former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of not guilty. But no conviction shall be had upon a plea of guilty in either of the following cases: (a) Where the crime charged is punishable by death, or (b) where the crime charged is or may be punishable by imprisonment in a State prison for the term of life. [AM'D CH. 384 of 1889.] (a) Effect of former indictment-A former indictment for the same offense to which defendant has pleaded is not a bar to a second indictment. (People v. Fisher, 14 Wend., 9.) (b) Plea to indictment.—An objection that an indictment is void on its face is not available under a special plea. (People v. Fadner, 10 Abb. N. C., 462.) Flea to indictment. The sufficiency of evidence before grand jury cannot be raised by a plea to indictment. Hope v. People, 83 N. Y., 418.) (c) Plea in abatement.—A plea in abatement that the grand jury was irregularly organized, cannot be introduced by the defendant when it does not effect his substantial rights. (People v. Petreu, 1 N. Y. Cr. R., 198; 92 N. Y., 128.) (d) Evidence of former conviction.-A former trial and conviction cannot be given in evidence under the plea of not guilty. (People v. Benjamin, 2 Park, 201.) (+) Former conviction without judgment enough.-The plea of former conviction is supported by proof of a lawful trial and verdict, though no judgment be given upon it. (Shepherd v. People, 25 N. Y., 406; People v. Cramer, 5 Park.. 171.) (f) What is a valid acquittal.-A verdict upon which no judgment could have been given, cannot be pleaded as a former acquittal. (People v. Olcott, 2 Johns. Cases, 301.) (4) Id.—A defendant convicted and afterwards discharged, because a juror has been improperly withdrawn, if again indicted for the same offense, cannot plead a former acquittal, if the first indictment was insufficient. (People v. Barrett, 1 Johns., 65.) (h) Must have him in jeopardy.-To sustain a plea of former acquittal it must appear that the defendant was acquitted for the same act and crime. (People v. Warren, 1 Park., 338.) It is no bar unless the offenses charged in both indictments are the same in law as well as fact. (People v. Burch, 5 N. Y. Cr. R., 29.) When the record does not show that the jury passed upon and rendered judgment upon a plea of formal acquital interposed by the defendant, a judgment of connection will be reversed. (Ib.) A defendant who has been tried for uttering a forged bond, cannot be tried for uttering at the same time the mortgage accompanying such bond, and pur |