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ON THE

CRIMINAL LAW

AND CRIMINAL COURTS

OF THE

STATE OF NEW YORK;

AND C PON THE

JURISDICTION, DUTY AND AUTHORITY OF

JUSTICES OF THE PEACE

And Other Magistrates,

AND ON THE POWER AND DUTY OF

SHERIFFS, CONSTABLES, PEACE OFFICERS, POLICE OFFICERS, &C.,

IN CRIMINAL CASES.

THIRD EDITION,
REVISED AND ADAPTED TO THE CODES AND RECENT STATUTES,

WITH FORMS

BY OLIVER L. BARBOUR, EL.!).

IN TWO VOLUMES.

VOL. II.

1883.
BANKS & BROTHERS,
473 AND 475 BROADWAY,

144 NASSAU STREET,
ALBANY.

NEW YORK.

THE NEW YORK
PUBLIC LIBRARY
214154

ASTOR, HEROX AND
TILAA FOUNDATIONS

1901

Entered according to act of Congress, in the year one thousand eight hundred and forty-one,

BY GOULD, BANKS & Co.
in the clerk's office of the district court of the northern district of New York.

Entered according to act of Congress, in the year one thousand eight hundred and fifty-two,

BY GOULD, BANKS & Co.,
in the clerk's office of the district court of the northern district of New York.

Entered according to act of Congress in the year one thousand eight hundred and seventy-nine,

BY BANKS & BROTHERS,
in the clerk's office of the district court of the northern district of New York.

Entered according to act of Congress, in the year one thousand eight hundred and eighty-three,

BY BANKS & BROTHERS,
in the clerk's office of the district court of the northern district of New York.

CHARLES VAN BENTHUYSEN & Sons,
Printers, Electrotypers and Binders,

Albany, N. Y.

Chap. 7.]

INDICTMENT.

348

* CHAPTER VII.

[ * 348]

IN WHAT CASES AN INDIOTMENT WILL BE QUASHED, OR SET

ASIDE.

When the indictment is defective, the court has a discretionary power, either to quash it, or oblige the defendant to plead or demur, or move in arrest. (a) Where the question is doubtful, they will put him to his motion in arrest of judgment. ()

An indictment may be set aside, on motion, for having been found by less than the legal number of grand jurors. But whether it can be set aside, or amended, on motion, for having been found without evidence, or upon insufficient evidence, seems doubtful. (C)

Ordinarily, a motion to quash must be made previous to plea pleaded, or any evidence given in the case ; at all events, before the cause is submitted to the jury. (d) (1) (a) 7 Cowen, 166. 2 Burr., 1127. 4 id., 2539.

2 Hawk., ch. 25, 146.

(b) 7 Cowen, 166.

(c) People v. Hulbut, 4 Denio, 133
(d) 20 Wend., 108.

with the same consequences, as if no such variance had occurred. (3 294.)

Effect of verdict, etc.)-A verdict and judgment, which shall be given after the making of any such amendment, shall be of the same force and effect, as if the indictment had originally been found in its amended form. (8 295.)

(1) The prisoner, upon his arraignment, may move to quash the indictment on the ground that twelve of the grand jury did not concur in the finding; and grand jurors inay be examined as to that fact. (People v. Shattuck, 6 Ab. N. C., 33.) In general, the court will not quash an indictment, though defective, after the defendant has been arraigned, and has pleaded not guilty. (People v. Walters, 5 Park., 661.)

SETTING ASIDE INDICTMENT.
On notion.]—The Code of Criminal Procedure directs that,

The indictment must be set aside, by the court in which the defendant is arraigned, and upon his motion, in either of the following cases:

1. When it is not found, indorsed and presented, as prescribed in sections 268 and 272;

2. When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263 and 264. (8 313.)

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