§ 940. Arraignment.-Before the accused can be tried he must first be arraigned, that is, in open court the indictment must be read to him and he must be asked whether he is guilty of the crime.' He may, instead of answering, plead in abatement or demur to the indictment or plead specially.2 His right to any of these pleadings is waived by a pleading of "guilty" or "not guilty." In some states a formal arraignment may be expressly or impliedly waived by the defendant. If the defendant's demurrer or dilatory plea be overruled the arraignment proceeds and he is again asked to

14 Bl. Comm. 322, 332.

22 Hale P. C. 219. See also, Whitehead v. Commonwealth, 19 Grat. (Va.) 640.

3 Foster v. State, 1 Tex. App. 531; 2 Hale, P. C. 175.

4 Hicks v. State, 111 Ind. 402, 12 N. E. 522; Goodin v. State, 16 Ohio St. 344.

7

6

plead guilty or not guilty.5 At a new trial a second arraignment is not necessary. There must be a plea before there can be a valid trial, even if the defendant voluntarily goes to trial without a plea. The plea must precede the impaneling and swearing of the jury. The rule is that if the prisoner tenders no plea the plea of "not guilty" is entered for him."

§ 941. Various kinds of defendant's pleas.—In addition to a motion to quash the indictment, the defendant may plead to the jurisdiction, plead in abatement of the indictment, demur to the indictment, specially plead in bar, or generally plead "not guilty." The principal special pleas in bar are those of "former jeopardy," that is "autrefois acquit" or "autrefois convict." The plea of pardon, or, in some states, an agreement to turn state's evidence, may be pleaded in bar. Or the defendant may confess his guilt either expressly by a plea of guilty or impliedly by the plea of nolo contendere. Generally speaking a plea of guilty may be retracted any time before sentence, and a plea of not guilty entered.10 After either the plea of guilty or nolo contendere evidence may be heard in mitigation of the sentence. Either plea is equivalent to a conviction.11

§ 942. Plea to the jurisdiction.—By this plea a defendant denies that the court has authority to try him either because of the nature of the crime or because it was not committed within the territorial jurisdiction of the court, or because the court has no jurisdiction of the defendant's person.12 12 Such

5 Rex v. Delamere, 11 How. St. Tr. 509.

6 People v. McElvaine, 125 N. Y. 596, 26 N, E. 929.

7 Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; State v. Cunningham, 94 N. Car. 824.

8 State v. Hughes, 1 Ala. 655; State v. Chenier, 32 La. Ann. 103; State v. Montgomery, 63 Mo. 296. 9 Commonwealth V. McKenna,

125 Mass. 397; Connon v. State, 5 Tex. App. 34.

10 Krolage v. People, 224 Ill. 456, 79 N. E. 570; Pattee v. State, 109 Ind. 545, 10 N. E. 421; People v. Richmond, 57 Mich. 399, 24 N. W. 124.

11 Commonwealth v. Horton, 9 Pick. (Mass.) 206.

12 Rex v. Johnson, 6 East 583; 4 B1. Comm. 333; 2 Hale P. C. 256.

a plea must be certain to the highest degree. The objection presented by such a plea may usually be raised under the plea of not guilty,18 or may be raised by demurrer, motion in arrest of judgment, or on appeal or writ of error.14

§ 943. Plea in abatement.-A plea in abatement is merely dilatory and does not go into the merits of the case, serving only to procure delay. This plea is available for defects either apparent on the record, or not apparent on the record.15 If the defect is apparent on the record, the court might direct the grand jury to send in a new bill or hold the prisoner until the next session.16 This kind of plea must be certain to every intent and verified by affidavit.1 It must be filed before any plea in bar.18 A plea in abatement is available for certain defects not appearing in the record, among them, if the defendant be indicted by a wrong name. 19 The pendency of another indictment for the same cause is not ground for plea in abatement.20 The prosecutor may demur to this plea thus forming an issue of law, or file a replication thus creating an issue of fact.21 Motion to quash is not proper.22

13 Parker v. Elding, 1 East. 352; Rex v. Johnson, 6 East. 583.

14 Rex v. Fearnley, 1 Term. Rep. 316, 2 Leach 475.

15 Day v. Commonwealth, 2 Grat. (Va.) 562; Commonwealth v. Long, 2 Va. Cas. 318; 2 Bish. New Crim. Proc. 8 738, 739, 740; Goodman v. Rutchik, Inc., 171 N. Y. S. 152 (test of a valid plea in abatement).

162 Hawk. P. C. ch. 34, § 2.

17 Hardin v. State, 22 Ind. 347; Commonwealth v. Sayers, 8 Leigh (Va.) 722; Feather v. Husted, 254 Pa. St. 357, 98 Atl. 971; Scheeline v. Moshier, 172 Cal. 565, 158 Pac. 222 (pleas in abatement are not favored and are strictly construed).

18 Martin v. Commonwealth, i Mass. 347.

19 2 Hale P. C. 175; 2 Hawk. P. C. ch. 25, 70; 2 Bish. New Crim. Proc. § 740.

20 Commonwealth V. Drew, 3 Cush. (Mass.) 279; Commonwealth v. Churchill, 5 Mass. 175.

21 1 Chitty Crim. L. 460. See also Hite v. State, 9 Yerg. (Tenn.) 357; State v. Locklin, 59 Vt. 654, 10 Atl. 464; Rex v. Vandercom, 2 Leach 715; Rex v. Wildey, 1 Maule & S. 183.

22 Rex v. Cooke, 2 Barn. & C. 618.

§ 944. Demurrer.-"By 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 offense sufficiently charged against."23 It puts the legality of the whole proceedings in issue, and compels the court to examine the whole record; thus raising objection, not only to the subject-matter of the charge, but also the jurisdiction of the court.24 It should be made after arraignment, but before plea in bar.25 If he pleads in bar, the court may in its discretion allow the defendant to withdraw his plea and file a demurrer.26 If the demurrer is overruled at common law, the court may, and usually does, allow him to plead over.27 In some states statutes provide that as a matter of right, where his demurrer is overruled, the judgment shall be respondeat ouster which gives the right to plead over. When he demurs to the indictment on the ground that he is not charged by it with any crime, he should be discharged from custody if his demurrer is sustained.28 If the objection is merely to the form of the indictment, he is not entitled to a discharge but may be detained until a new indictment is filed.29 At common law, a defendant on motion in arrest of judgment could obtain all the advantage possible by a demurrer;30 but under the

23 2 Bish. New Crim. Proc. § 741. See also Rex v. Fearnley, 1 Tenn. Rep. 316.

24 Commonwealth v. Trimmer, 84 Pa. St. 65; 1 Chitty. Crim. L. 440.

25 People v. Villarino, 66 Cal. 228, 5 Pac. 154; Commonwealth V. Chapman, 11 Cush. (Mass.) 422.

26 People v. Villarino, 66 Cal. 228, 5 Pac. 154; Reg. v. Purchase, Car. & M. 617.

27 Commonwealth v. Goddard, 13 Mass. 455; Wilson v. Laws, 1 Salk. 50; 1 Chitty. Crim. L. 439.

28 Rex v. Burder, 4 Term. Rep. 778; Rex v. Haddock, Andrews, 137.

29 Rex v. Haddock, Andrews 137; 1 Chitty Crim. L. 443.

301 Chitty Crim. L. 442.

statutes of most of our states certain defects must be raised by motions to quash or demurrer if raised at all. Demurrer will also lie by the prosecutor to any plea of the defense.31

§ 945. Motion to quash.—The judge in his discretion may quash an indictment; that is, may cause it to abate, whenever it can not be proceeded with advantageously to public justice, or without doing a wrong to the defendant.32 He may either enter an order quashing it, or merely refuse to try the indictment.33 This motion should be made ordinarily before arraignment and plea; but in the absence of statute may be heard, in the discretion of the court, any time before verdict. A motion to quash will lie when there is a defect on the face of the indictment or for duplicity or misjoinder.35 In some states the motion will lie where the defect is not apparent upon the face of the record as where the grand jury is defectively constituted or hears illegal evidence.36 Indictments may be quashed for want of jurisdiction,37 where the statute of limitations has run against the offense charged,38 for repugnancy,39 for failure to state an offense, 40 for failure to state the crime, or stating the time at a future date,11 for

31 Rooks v. State, 83 Ala. 79, 3 So. 720; State v. Roberts, 166 Ind. 585, 77 N. E. 1093; State v. McNay, 100 Md. 622, 60 Atl. 273; State v. Laughlin, 180 Mo. 342, 79 S. W. 401.

32 Reg. v. Wilson, 6 Q. B. 620; 6 Ad. & El. 619, 51 E. C. L. 619.

33 United States v. Kuhl, 85 Fed. 624; State v. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St. 790.

34 State v. Oliver, 42 La. Ann. 943, 8 So. 471; State v. Summerlin, 116 La. 449, 40 So. 792; State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. 349; State v. Prater, 59 S. Car. 271, 37 S. E. 933.

35 Wickwire v. State, 19 Conn. 477; Lewellen v. State, 18 Tex. 538.

36 United States v. Kilpatrick, 16 Fed. 765; State v. Richard, 50 La. Ann. 210, 23 So. 331; State v. Batchelor, 15 Mo. 207; State v. Grady, 12 Mo. App. 361.

37 Justice v. State, 17 Ind. 56; Bell v. Commonwealth, 8 Grat. (Va.) 600.

38 State v. J. P., 1 Tyler (Vt.) 283.

39 State v. Johnson, 5 Jones L. (N. Car.) 221.

40 People v. Eckford, 7 Cow. (N. Y.) 535; Williams v. State, 42 Tex. 392.

41 State v. Roach, 2 Hayw. (N. Car.) 352; State v. Sexton, 3 Hawk. (N. Car.) 184.