omission in material averment,42 for misjoinder of parties,13 or misjoinder of offenses, or defects in the caption.45 The motion, however, being addressed to the court's discretion should be overruled in a doubtful case wherever the insufficiency is not clearly palpable.46 If there is a motion to quash, the court, by the better rule, may quash bad counts without affecting the good counts.47 After quashing an indictment a new one may be brought against the defendant.48 At common law, all objections which could be presented by motion to quash could be raised after verdict by motion in arrest of judgment; but by statutes in certain of our states certain objections must be raised by motion to quash or forever be waived.

49

§ 946. Plea of not guilty.-The plea of not guilty, usually spoken of as the general issue, the only general plea in bar. This plea puts in question the entire issue of guilt, and denies all facts necessary to render the accused guilty of the offense charged.50 Under such a plea special defenses may be proved such as, if the indictment be for murder, justification, insanity or self-defense;51 or under an indictment for unlawfully selling liquor, that the sale was by license.52 The statute of limitations may be offered under the general plea.53

42 Rex v. Lease, Andrews, 226; Rex v. Trevilian, 2 Strange, 1268. 43 Rex v. Weston, 1 Strange 623. 44 Clarks' Crim. L. 365.

45 State v. Hickman, 8 N. J. L. 299; Rex v. Brown, 1 Salk. 376.

46 Commonwealth v. Eastman, 1 Cush. (Mass.) 189; 48 Am. Dec. 596; People v. Davis, 56 N. Y. 95; Commonwealth v. Litton, 6 Grat. (Va.) 691.

47 Commonwealth v. Lapham, 156 Mass. 480, 31 N. E. 638; Scott v. Commonwealth, 14 Grat. (Va.)

687.

Should the accused stand mute, the plea of not guilty is entered for him by the court.5 54

The plea of not guilty may at any time be withdrawn to permit a plea of guilty or a confession.55

§ 947. Plea of guilty or nolo contendere.-The plea of guilty is a record admission of the truth of whatever is well alleged in the indictment, and if the indictment is good, the court may proceed to sentence.56

The plea of nolo contendere is a declaration of record by the defendant that he does not wish to contend with the prosecution. The same judgment and sentence may be rendered as upon a plea or verdict of guilty.57 A plea of nolo contendere does not bind the defendant in civil action for the same injury, as a plea of guilty does.58

§ 948. Plea of former jeopardy.-Under a rule of the common law, incorporated in the Constitution of the United States and the constitutions of the states, no person may be placed twice in jeopardy for the same offense. The plea of autrefois acquit is sustained by showing either that a verdict of not guilty was returned or that the prosecution was discontinued after jeopardy had attached. That of autrefois convict can only be sustained by showing a conviction and verdict of guilty.

A prosecution by one of two or more sovereignties for an act which is a separate offense against each, is not a bar to a prosecution by the other." For instance where one em

54 Commonwealth v. Quirk, 155 Mass. 296, 29 N. E. 514; Commonwealth v. Harvey, 103 Mass. 451; Ellenwood v. Commonwealth, 10 Metc. (Mass.) 222.

55 Epps v. State, 102 Ind. 539, 1 N. E. 491; State v. Abrahams, 6 Iowa 117, 71 Am. Dec. 399.

56 State v. Branner, 149 N. Car. 559, 63 S. E. 169.

57 Commonwealth V. Holstine, 132 Pa. St. 357, 19 Atl. 273; 1 Chitty Crim. L. 431.

58 Commonwealth v. Horton, 9 Pick. (Mass.) 206; 1 Chitty Crim. L. 431.

59 United States v. Barnhart, 22 Fed. 285; 10 Sawy. (U. S.) 491; Bloomer v. State, 48 Md. 521.

bezzles funds of a national bank, he commits a crime against the United States and one against the state and may be prosecuted by both. It has been held the same rule applies where the same act violates both a city ordinance and a state statute, but there are contrary decisions.61 Nor does the fact that one has been compelled in a civil action to pay damages to an injured person prevent his being criminally punished for the same act, or criminal conviction prevent civil liability for the same act. Both person and property may be required to pay the penalty.

§ 949. When jeopardy begins.-Jeopardy begins as soon as the jury has been fully empanelled and sworn, provided the accusation is sufficient, and the accused has been previously arraigned and has pleaded not guilty. Before this time the prosecution may be dismissed without prejudice to the right to institute another prosecution.62 After the jury is sworn and charged with the deliverance of the accused, the entering of a nolle prosequi, or its unnecessary discharge without the defendant's consent, amounts to an acquittal.6

§ 950. Jurisdiction of former court.-In order for a previous acquittal or conviction to bar a subsequent prosecution, the court before which the trial was had must have had jurisdiction of the person and the offense.64

60 Robbins v. People, 95 Ill. 175; People v. Stevens, 13 Wend. (N. Y.) 341.

61 Preston v. People, 45 Mich. 486, 8 N. W. 96; State v. Thornton, 37 Mo. 360.

62 Patterson v. State, 70 Ind. 341; Commonwealth v. Tuck, 20 Pick. (Mass.) 356.

63 State v. Walker, 26 Ind. 346; Commonwealth v. Hart, 149 Mass. 7, 20 N. E. 310.

64 Barber v. State, 151 Ala. 56, 43 So. 808; People v. Connor, 65 Hun. (N. Y.) 392, 8 N. Y. Cr. 439. 48 N. Y. St. 25, 20 N. Y. S. 209.

If the defendant procures the cessation of the trial,65 or there is a mistrial through his fault, as when he absents himself when the verdict is rendered, or fails to object before judgment to a defective verdict, or he consents to a discharge of the jury, he is not entitled to claim jeopardy. 66 If the jury is discharged through necessity on account of death, sickness or misconduct of a juror, or for illness of a judge or of the prisoner, or other cause of necessity, it is not equivalent to an acquittal.67 Nor is a discharge because of disagreement after due deliberation a bar to subsequent prosecution for the same offense.68

§ 951. Identity of party and offense.-To constitute the plea of jeopardy a good defense the two offenses must have been the same in law and fact. The general rule is that the offenses are not the same if the defendant could not have been convicted under the first indictment upon proof of the facts alleged in the second.69 Whether the offenses are

identical or not is a question for the court.70

§ 952. Former jeopardy for lesser or greater offense.-If the accused has been in jeopardy for a lesser offense growing out of the same transaction, it is the better view that the plea of former jeopardy is a good defense, provided the lesser offense is a necessary and integral part of the greater.

65 Veatch v. State, 60 Ind. 291; Commonwealth v. Green, 17 Mass. 515; Sutcliffe v. State, 18 Ohio 469, 51 Am. Dec. 459.

66 People v. Higgins, 59 Cal. 357; Wright v. State, 5 Ind. 527; Commonwealth v. Sholes, 13 Allen (Mass.) 554; Reg. v. Deane, 5 Cox Cr. C. 501.

67 Simmons V. United States, 142 U. S. 148, 35 L. ed. 968; Peo

ple v. Ross, 85 Cal. 383, 24 Pac.

68 United States V. Perez, 9 Wheat (U. 9.) 579, 6 L. ed. 165; People v. Pline, 61 Mich, 247, 28 N. W. 83.

69 Burk v. State, 81 Ind. 128; State v. Price, 127 Iowa 301, 103 N. W. 195.

70 Reynolds v. People, 83 Ill. 479; 25 Am. Rep. 410; State v. Cross, 101 N. Car. 770, 7 S. E. 715, 9 Am. St. 53.

Thus one who has been in jeopardy for an assault with intent to rape, to rob, or to murder, may not be again prosecuted for a consummated rape, robbery, or murder arising out of the same transactions, if under the indictment for the greater offense he could be convicted of the lesser. Or if on trial for rape former jeopardy for fornication is a good defense.72 And where the accused has been in jeopardy for a greater offense growing out of the same transaction the plea of former jeopardy is a good defense, provided he might have been convicted of the less offense under the first indictment.73 Thus in a trial for murder a former jeopardy for manslaughter is a defense. Where both indictments charge a less crime in common, former jeopardy for such less crime is a good defense to the later indictment; as where the accused is on trial for robbery, former jeopardy for assault with intent to kill growing out of the same transaction,74 or where the trial is for rape, former jeopardy for assault and battery.75

§ 953. Where one indictment is for felony, the other for misdemeanor.-As we have seen, under the English common law, one indicted for a felony might not, because of the difference in the incidents of trial be convicted of a misdemeanor.76 But under the modern rule, one indicted for a felony may be convicted of any misdemeanor which is an essential element of it." The contrary is sometimes held.78

71 Franklin v. State, 85 Ga. 570, 11 S. E. 876; State v. Smith, 43 Vt. 324.

72 Commonwealth v. Arner, 149 Pa. St. 35, 24 Atl. 83.

73 Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; Commonwealth v. Roby, 12 Pick. (Mass.) 496.

74 Herera v. State, 35 Tex. Cr. 607, 34 S. W. 943.

75 Bell v. State, 103 Ga. 397, 30 S. E. 394, 68 Am. St. 102.

76 See §922.

77 State v. Brechbill, 10 Kans. App. 575, 62 Pac. 251; Commonwealth v. Crowley, 167 Mass. 434, 45 N. E. 766; Hanna v. People, 19 Mich. 316; State v. Musick, 101 Mo. 260, 14 S. W. 212; State v. Rambo, 95 Mo. 462, 8 S. W. 365. 78 Commonwealth v. Newell, 7 Mass. 245; Commonwealth V.