4. That the facts stated do not constitute a crime; or 32 Hun, 179. 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. Code Crim. Pro., § 323. See § 48, post. 13 N. Y. Supp. 116; 17 id. 396; 18 id. 569; 1 N. Y. Cr. R. 141; 5 id. 298, 370; 3 id. 304, 310, 582; 28 Hun, 2; 59 id. 112; 11 N. Y. St. R. 384; 44 id. 920; 48 id. 439; 55 id. 669; 65 id. 676. 41 Form of demurrer. 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. Code Crim. Pro., § 324. 110 N. Y. 310; 18 N. Y. St. R. 267. 42 Same, when heard. Upon the demurrer being filed, the objections presented thereby must be heard at such time as the court may appoint. Code Crim. Pro., § 325. 135 N. Y. 457; 65 Hun, 114. 43 Judgment on same. The court must give judgment upon the demurrer either allowing or disallowing it; and an order to that effect must be entered upon the minutes. Code Crim. Pro., § 326. 3 N. Y. Cr. R. 117, 119. 44 Judgment, when a bar. 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 on 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. Code Crim. Pro., § 327. 5 N. Y. Cr. R. 288, 297; 44 Hun, 278, 288. 45 Defendant, when to be 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. Code Crim. Pro., § 327. 46 Hun, 358, 362; 5 N. Y. Cr. R. 299; 7 id. 350; 8 id. 357; 92 N. Y. 128; 46 N. Y. St. R. 256; 10 N. Y. Supp. 252; 19 id. 509. 46 Proceedings on resubmission. If the court direct that the case be submitted anew, the same proceedings must be had thereon, as are prescribed in sections 318 and 319.* Code Crim. Pro., § 329. 8 N. Y. Cr. R. 357; 46 N. Y. St. R. 256; 92 N. Y. 128; 19 N. Y. Supp. 509. 47 Proceedings, if demurrer disallowed. 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. Code Crim. Pro., § 330. 2 N. Y. Cr. R. 108, 114; 3 id. 117, 119; 30 N. Y. St. R. 46; 9 N. Y. Supp. 939. 48 What objections may be taken on or after trial. The objections mentioned in section 323 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. Code Crim. Pro., § 331. See Judgment, etc., § 93. 31 Hun, 225; 38 id. 107; 65 id. 392; 34 id. 262; 80 id. 134: 110 N. Y. 310, 314; 4 N. Y. Cr. R. 230; 3 id. 233, 242, 578, 582; 2 id. 18; 8 id. 407, 441; 103 id. 487, 497; 133 id. 214; 142 id. 130; 42 N. Y. St. R. 165; 44 id. 749, 920; 58 id. 632; 61 id. 786; 18 id. 267; 17 N. Y. Supp. 396; 18 id. 569; 25 id. 481. Plea to the Indictment. 49 Kinds of pleas; conviction on plea of guilty. There are three kinds of pleas to an indictment; a plea of (1) guilty, (2) not guilty, (3) a former judgment *This subject, §§ 35, 36. 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. Code Crim. Pro., § 332, as am'd L. 1889, c. 384. 14 Wend. 9; 92 N. Y. 128, 145, aff'g 30 Hun, 98, 101; 43 N. Y. 28; 2 Park. 201, 676; 1 id. 338, 445; 5 id. 57, 66, 77, 171; 4 id. 196, 527; 6 id. 155; 110 N. Y. 29; 131 id. 118; 25 id. 406, rev'g 23 How. Pr. 337; 26 N. Y. 167; s. c. 28 id. 400, rev'g 23 How. Pr. 314; 2 Johns. Cas. 301; 1 Johns. 66; 18 id. 187, 212; 13 id. 351; 1 Abb. App. Dec. 305: 4 C. H. Rec. 132; 2 id. 33; 15 Wend. 231; 17 id. 386; 1 Sheld. 549; s. c. 4 Park. 217; 3 Hill, 479; 2 Cai. 304; 1 Wh. Cr. C 469; 60 Barb. 527; 15 Hun, 484; 60 id. 364; 65 id. 392; 78 id. 179; 38 N. Y. St. R. 998; 39 id. 761; 42 id. 717; 46 id. 256; 48 id. 28; 60 id. 247; 1 N. Y. Cr. R. 203, 244; 6 id. 95; 8 id. 357, 443; 15 N. Y. Supp. 60, 499; 19 id. 509; 28 id. 912. See § 56, post. 50 Plea, how put in. the minutes of the court. Every plea must be oral, and must be entered upon 30 Hun, 101; 47 id. 157; 39 N. Y. St. R. 761; 15 N. Y. Supp. 497. 51 Form. The plea must be entered in substantially the following form: 1. If the defendant plead guilty to the crime charged in the indictment, “the defendant pleads that he is guilty;' 2. If he plead guilty to any lesser crime than that charged in the indictment, "the defendant pleads guilty to the crime of " (naming it). 3. If he plead not guilty, "the defendant pleads not guilty." 15 N. Y. Supp. 499. 4. If he plead a former conviction or acquittal: "the defendant pleads, that he has already been convicted (or acquitted, as the case may be), of the crime charged in this indictment, by the judgment of the court of (naming it), -" Code Crim. Pro., day of " 52 Plea of guilty, by whom put in. A plea of guilty can only be put in by the defendant himself in open court, except upon an indictment against a corporation; in which case, it may be put in by counsel. Code Crim. Pro., § 335. 53 Plea of insanity. Whenever a person in confinement under indictment, desires to offer the plea of insanity, he may present such plea at the time of his arraignment, as a specification under the plea of not guilty. Code Crim. Pro., § 336. 75 N. Y. 159; 16 id. 70; 25 Alb. L. J. 42; 2 N. Y. Cr. R. 338; 8 id. 156; 2 Cr. L. Mag. 612; 125 N. Y. 596; 36 N. Y. St. R. 181. 54 Plea of guilty, when withdrawn. The court may in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted. Code Crim. Pro., § 337. 4 N. Y. Cr. R. 348. 55 Effect of plea of not guilty. The plea of not guilty is a denial of every material allegation in the indictment. Code Crim. Pro., § 338. 2 Park. 201; 1 N. Y. Cr. R. 217; 39 N. Y. St. R. 761; 33 id. 565; 11 N. Y. Supp. 596; 15 id. 499. 56 What may be given in evidence under same. All matters of fact tending to establish a defense, other than that specified in the third subdivision of section 33 may be given in evidence under the plea of not guilty. Code Crim. Pro., $339. 2 N. Y. Cr. R. 333; 1 id. 217; 6 id. 95; 110 N. Y. 29; 15 N. Y. Supp. 499. 57 What is not deemed a former acquittal. If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, or This subject, § 49. the indictment were dismissed upon an objection to its form or substance, without a judgment of acquittal, it is not deemed an acquittal of the same offense. Code Crim. Pro., § 340. 1 Abb. App. Dec. 305; 1 Johns. 66; 61 Hun, 327; 40 N. Y. St. R. 686; 15 N. Y. Supp. 917; 8 N. Y. Cr. R. 315. 58 What is deemed a former acquittal. When, however, the defendant was acquitted on the merits, he is deemed acquitted of the same offense, notwithstanding a defect in form or substance, in the indictment on which he was acquitted. Code Crim. Pro., § 341. 1 Abb. App. Dec. 305, 308; 15 Hun, 484, 487. 59 Defendant refusing to answer indictment. If the defendant refuse to answer an indictment, by demurrer or plea, a plea of not guilty must be entered. Code Crim. Pro., § 342. 3 N. Y, Cr. R. 445; 34 Hun, 262; 39 N. Y. St. R. 761; 15 N. Y. Supp. 497. Removal of the Action, before Trial. 60 Existing writs and proceedings abolished. All writs and other proceedings heretofore existing, for the removal, upon the application of the defendant, of criminal actions prosecuted by indictment from one court to another before trial, are abolished. Code Crim. Pro., § 343. 61 When and in what cases, indictment may be removed before trial. A criminal action, prosecuted by indictment, may at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter,* in the following cases: 101 N. Y. 251; 4 N. Y. Cr. R. 75; s. c. 3 How. Pr. N. S. 418. 1. From a county court or a city court to a term of the supreme court held in the same county, for good cause shown; 10 Wend. 509; 3 Barb. 144; 11 Abb. Pr. 59; s. c. 19 How. Pr. 446; 7 Abb. Pr. N. S. 348. 2. From the supreme court, or a county court, or a city court, to a term of the supreme court held in another county, on the ground that a fair and impartial trial can not be had in the county or city where the indictment is pending. Code Crim. Pro., § 344, as am'd L. 1895, c. 880. 7 Cow. 108, 136; 1 Hill, 179; 7 id. 147; 3 Hun, 560; 53 id. 437; 4 Park. 602; 3 id. 181; s. c. 3 Abb. Pr. 43; 16 How. Pr. 106; 4 Den. 150; 15 N. Y. Supp. 79; 67 N. Y. St. R. 324. 62 Removal after one or more trials. If one or more trials be had, and a new trial is necessary, either by reason of the discharge of a jury without a verdict, or of the granting of a new trial the removal may be allowed at any time before the new trial. Code Crim. Pro., § 345. Application for removal. 3 Park. 181; s. c. 3 Abb. Pr. 43. 63 The application for the order of removal must be made to the supreme court, at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded. Code Crim. Pro., § 346. 3 Wend. 431; 7 Cow. 108, 136; 69 N. Y. St. R. 253; 37 N. Y. Supp. 998; 13 Misc. 289. 64 Stay pending same. To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided. Code Crim. Pro., § 347. 11 Abb. N. C. 89; 69 N. Y. St. R. 253; 13 Misc. 290. 65 Decision on application for stay. When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with. the clerk of the court, in which the indictment is pending. Code Crim. Pro., § 348. *This subject, §§ 60-70. 66 But one application can be made. If the application for an order to stay the trial has been made before one judge and denied, a similar application cannot be made to another judge. Code Crim. Pro., § 349. 101 N. Y. 251. 67 Violation of last section. A violation of the last section is punishable not only as a misdemeanor, but as a contempt of the court in which the indictment is pending; and that court must vacate an order of removal made in violation thereof. Code Crim. Pro., § 350. 101 N. Y. 251; 3 N. Y. Cr. R. 216. 68 Proceedings on order of removal. If the supreme court order the removal of the action, a certified copy of the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending; who must thereupon transmit the same with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court, to which the action is removed. Code Crim. Pro., § 351. 69 Proceedings on removal, if defendant be in custody. If the defendant be in custody, and the removal be into another county than that where the indictment is pending, the order must provide for the removal of the defendant by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed; and he must be forthwith removed accordingly. Code Crim. Pro., § 352, as am'd L. 1895, c. 880. 70 Effect of filing order. An order for the removal of the action is of no effect, unless a certified copy thereof be filed, as required by section 351, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed, must proceed to trial and judgment therein. Code Crim. Pro., § 353. 71 Expenses of trials from other counties. Whenever under the order of any court of competent jurisdiction, the pleadings and issue in any indictment or prosecution for any crime or misdemeanor shall have been sent down to any county in this state for trial therein, in consequence of any inability to obtain an unprejudiced or impartial jury in the county in which the venue was originally laid, the expenses of the trial of said indictment or prosecution shall be a charge upon the county from which the same was transferred, and in case they shall have been assessed on any county in which any such issue shall have been determined, the same, with interest thereon, shall be reimbursed to the treasury of such county by the county treasurer in the county from which such proceedings have been sent down, and the board of supervisors of the county liable to pay such expenses as aforesaid, are hereby authorized to include the same in their annual levy of taxes. L. 1853, c. 195, § 1. Second Indictment Supersedes Former One for Same Offense. 72 First indictment to be quashed. If there be at any time pending against the same defendant, two indictments for the same offence; or two indictments for the same matter, although charged as different offences, the indictment first found, shall be deemed to be superseded by such second indictment, and shall be quashed. 2 R. S. 726, § 42. OF ACCESSORY; see Crimes, SS 10, 11. ACCESSORY AFTER; see Crimes, § 9. ACTIONS PROSECUTED BY, WHERE TREATED OF; see Code of Criminal Procedure, § 3. ARRAIGNMENT UPON; see Arraignment, §§ 1, 2, 8, 8a, 9. AVERMENTS IN; see Larceny, § 24. BENCH WARRANT UPON FINDING; see Bench Warrant. BINDING OVER WITNESSES ON POSTPONEMENT OF TRIAL OF; see Evidence, § 117. BRINGING PRISONER BEFORE COURT, FOR TRIAL OF; see Sheriff, § 19; Trials, § 225. CERTIFICATE THAT IT IS REASONABLE THAT CRIME BE PROSECUTED BY; see Courts of Special Sessions, § 24. COMMITMENT, OR BAILING OF DEFENDANT UPON FINDING; see Arraignment, §§ 6, 7; Arrest, SS 140-144, 161. FOR COMPOUNDING CRIME, PROOF ON TRIAL OF; see Compounding Crimes, § 2. CONSPIRACY TO PROCURE; see Conspiracy, § 1. CONSTRUCTION OF; see Penal Code, § 10. FOR CONTEMPT; see Contempt, § 23; Courts, § 13. AGAINST CORPORATION; see Corporations, § 194, CRIMES TO BE PROSECUTED BY; see Constitution, § 6; Crimes, § 41; Liquor Tax Law, § 35; Rights, Bill of, § 12. DEFECTS IN: see Judgment, etc., § 93; Mistakes, § 11. DEFINED; see Grand Juries, § 56. DISCHARGE OF PRISONER UPON FAILURE TO FIND; see County Law, § 98. DISMISSAL OF PROSECUTION BEFORE OR AFTER; see Dismissal. ELECTION BY DEFENDANT OF JURY TRIAL AFTER; see Commitment, § 24. FAILURE OF FACTS CHARGED IN, TO CONSTITUTE A CRIME; see Trials, §§ 276, 282. FINDING, EVIDENCE TO WARRANT; see Grand Juries, §§ 57, 60. FORMER CONVICTION OR ACQUITTAL A BAR TO; see Jurisdiction, §§ 7, 8. HABEAS CORPUS TO PRODUCE PRISONER ON TRIAL OF; see Habeas Corpus. AGAINST HABITUAL CRIMINAL; see Habitual Criminals, § 7. IMPEACHMENT NO BAR TO; see Constitution, § 84; Court for the Trial of Impeachments, $ 24. INQUIRY INTO SANITY OF DEFENDANT PENDING; see Insanity Law, § 175. JOINT; see Evidence, § 120; Trials, § 320. JURORS FOR TRIAL OF; see Code of Civil Procedure, §§ 7 (subd. 2), 10; Jury. FOR LARCENY; see Larceny, §§ 13, 21, 24. FOR LIBEL; see Constitution, § 8; Jurisdiction, § 6; Rights, Bill of, § 21; Trials, § 292. LIMITATION OF TIME WITHIN WHICH TO BE FOUND; see False Personation, § 2; Limita tions, 55-58; Seduction, § 2. MISNOMER IN; see Arraignment, § 10. NEW, AFTER ARREST OF JUDGMENT; see Judgment, etc., § 96. FOR OFFENSE COMMITTED BY CONVICT; see Prisons, 152, 153. ORAL PLEA TO, IN COURTS OF SPECIAL SESSIONS; see Trials, § 336. OVERT ACTS ALLEGED IN; see Trials, §§ 271, 272. PART OF JUDGMENT-ROLL; see Judgment, etc., § 111. PRESENCE OF DEFENDANT, WHEN NECESSARY ON TRIAL OF; see Trials, §§ 230, 308, 332. PROOF OF HIGHER CRIME THAN THAT CHARGED IN; see Trials, §§ 274, 275. QUESTIONS OF LAW AND FACT ON TRIAL OF; see Trials, §§ 292, 293. RIGHTS OF ACCUSED ON TRIAL OF; see Constitution, § 6; Rights, Bill of, § 12. FOR TWO OR MORE OFFENSES, OR CRIMES OF MORE THAN ONE DEGREE; see Burglary, § 11; Crimes, §§ 14, 15; Trials, §§ 270, 316, 318, 319. VARIANCE BETWEEN PROOF AND; see Trials, § 326. VERDICT UPON TRIAL OF; see Trials, § 311. WHERE TO BE FOUND AND TRIED; see Bigamy, § 3; City Courts; County Courts, SS 2426; Crimes, § 11; Duels, etc., § 7; Fraud, § 18; Homicide, §7; Jurisdiction; Kidnapping, § 2; Larceny, § 13; Letters, 2; Libel, SS 10-13; Nuisance, § 12; Prize Fighting, § 5; Supreme Court, § 14; Trials, §§ 229, 277–279. See also Crimes; Felonies; Grand Juries; Misdemeanors; Trials. INDIVIDUAL. BANKER; see Banking Law; Corporations, § 179; Tax Law, §§ 25, 202. INDORSEMENT. OF EXECUTION; see Executions, §§ 2, 15. FORGED; see Forgery, §§ 3, 15, 16. ILLEGAL, BY OFFICER OF BANK; see Corporations, § 174. OF INDICTMENT; see Indictment, $$ 3, 6, 30. OF MUNICIPAL AND OTHER CORPORATE BONDS; see Municipal Law, §§ 40-46. OF SUMMONS; see Actions, § 13. OF WARRANT OF ARREST SERVED OUTSIDE THE COUNTY OF ITS ISSUE; see Arrest, §§ 82, 83; Bastardy, §§ 6-10; Coroners, § 21. OF WARRANT OF ATTACHMENT; see Contempt, §§ 11-13. OF WRIT OR OTHER PROCESS; see Courts, § 24. ACTION BY INDORSER AGAINST PRINCIPAL; see Actions, § 40. INDORSER NOT RELIEVED FROM TAXATION; see Tax Law, § 6. See also Bills, etc. INDUSTRIAL. ASSOCIATIONS; see Business Corporations Law. SCHOOL; See Liquor Tax Law, SS 24, 30; State Charities Law, §§ 126-128. INFAMOUS CRIME. See Constitution, §§ 6, 20; Military Code, § 2; Rights, Bill of, § 12. |