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quashed on motion. Where it depends upon extrinsic circumstances, advantage can be taken of it only by plea.

Read 4 Bl. Comm., p. 333.

1 Chitty C. L., pp. 437-439.

1 Whart. C. L., §§ 534, 535.
1 Bish. C. P., § 794.

§ 504. Of Pleas in Abatement.

A plea in abatement is an allegation that the proceedings are void, by reason of some defect or irregularity therein. This plea may be based either upon matters apparent on the record, or on extrinsic facts.

Read 4 Bl. Comm., pp. 334, 335.
2 H. P. C., pp. 236–240.

1 Chitty C. L., pp. 444–451.
1 Arch. Cr. Pr., pp. 358-360.

1 Whart. C. L., §§ 536, 537.
1 Bish. C. P., §§ 791–793.

1 B. & H. L. C. C., pp. 272–276.

§ 505. Of Demurrers.

A demurrer is an allegation that the acts, described in the indictment, do not constitute a crime. It may be based either upon matters of substance, or upon such formal matters as are essential to the sufficiency of the indictment. When a demurrer is sustained, a new indictment must be presented, or the accused must be discharged. If it is overruled, judgment will go against him as on a plea of guilty, except in cases of felony.

Read 4 Bl. Comm., p. 334.

1 Chitty C. L., pp. 439-443.
1 Arch. Cr. Pr., pp. 380-383.

1 Whart. C. L., §§ 525-529.
1 Bish. C. P., §§ 775–786.
1 B. & H. L. C. C., pp. 276–295.

§ 506. Of the Plea of Former Conviction.

A plea in bar is either an allegation that the averments of the indictment are untrue, or it is a denial that the accused is liable to punishment for the acts therein described. Pleas in bar are of four kinds: (1) Former Conviction; (2) Former Acquittal; (3) Pardon; (4) Not Guilty. The plea of former conviction (called also autrefois convict) is an allegation that the accused has already been convicted of the offence charged in the indictment. It is a rule of law, that no person shall be put in jeopardy more than once for the same criminal act; and when such jeopardy is evidenced by a conviction or acquittal, that conviction or acquittal may be pleaded in bar to any subsequent prosecution for the same offence. This plea must set out the record of the former case, and must aver that the accused and the crime were the same as in the present indictment. It must also appear that the former conviction was regular, and was upon a sufficient indictment. The offences are the same, when the evidence, necessary to support the second indictment, would have been necessary and sufficient to procure a legal conviction on the first. But the offences must be the same in law as well as in act, for when the same act constitutes two or more distinct offences, a conviction of one will not bar a prosecution for the others. A former conviction or acquittal, obtained by the fraudulent act of the accused, will not be a bar to another prosecution for the same offence.

Read 4 Bl. Comm., p. 336.

2 H. P. C., pp. 251-255.
1 Chitty C. L., pp. 461-463.
1 Arch. Cr. Pr., pp. 371-374.
1 Whart. C. L., §§ 539-591.
1 Bish. C. L., §§ 978-1070.

1 Bish. C. P., §§ 805-831.
1 B. & H. L. C. C., pp. 440-482.

§ 507. Of the Plea of Former Acquittal.

A plea of former acquittal (called also autrefois acquit) is an allegation that the accused has already been acquitted of the particular offence charged in the indictment. This plea is based on the same principle, and governed by the same rules, as that of former conviction.

Read 4 Bl. Comm., p. 335.

2 H. P. C., pp. 241-250.
1 Chitty C. L., pp. 452–461.
1 Arch. Cr. Pr., pp. 360-371.
1 Whart. C. L., §§ 539–572.
1 Bish. C. P., §§ 805–831.

1 B. & H. L. C. C., pp. 513–542.

§ 508. Of the Plea of Pardon.

A plea of pardon is an allegation that the accused has been released, by competent authority, from liability to prosecution and punishment for the offence charged in the indictment. The power to pardon offences against the laws of the United States, except in cases of impeachment, is vested in the President. In most of the States, the governors have the same power in regard to offences against the laws of their respective States. A pardon is a matter of pure discretion, and may be either absolute or conditional. It takes effect only from the delivery of the charter of pardon to, and its acceptance by, the offender, and its operation is limited to the particular offence, which the charter describes. A plea of pardon must set out the charter, and make profert of the same, and the charter itself, duly verified, must be produced in court.

Read 4 Bl. Comm., p. 337.

1 Chitty C. L., pp. 466-470.
1 Arch. Cr. Pr., pp. 374-380.
1 Whart. C. L., §§ 591 a-591 g.

1 Bish. C. L., §§ 897-926.
1 Bish. C. P., §§ 832–848.

§ 509. Of the Plea of Not Guilty.

A plea of not guilty denies all the allegations in the indictment, as well as the sufficiency of the alleged matters to constitute a crime. Under this plea, any excuse or justification may be shown, or any other matter which does not admit the existence both of the criminal act and the criminal intent.

Read 4 Bl. Comm., pp. 338-341.
2 H. P. C., pp. 255–259.

1 Chitty C. L., pp. 470, 471.
1 Whart. C. L., §§ 530, 592.
1 Bish. C. P., §§ 794 a-801.

§ 510. Of Trial. Petit-Jury. Challenges.

A trial is a legal investigation of the issues created by the prosecution and the plea. No trial upon the merits can be had except under the plea of not guilty, and this trial is usually conducted before a petit-jury, acting under the direction, and with the assistance, of the court. A petitjury is a body of men, legally selected from the people of the county, and duly impanelled and sworn to try and decide the issue, between the state and the accused. Before this jury are sworn, both the state and the accused have a right to object to such of them as, for sufficient reasons, ought not to participate in the trial of the case. These objections, like the similar objections made in civil causes, are called challenges, and are of the same classes, and are governed by the same general rules.

Read 4 Bl. Comm., pp. 349-355.

2 H. P. C., pp. 260–275.

1 Chitty C. L., pp. 500-553.

1 Arch. Cr. Pr., pp. 509-527, 541-565.

3 Whart. C. L., §§ 3039-3152.

1 Bish. C. P., §§ 890-949 b, 1017-1045.

§ 511. Of Evidence in Criminal Causes.

When the jury have been sworn, the indictment and plea are read to them, and the trial begins. The proceedings, which constitute a trial in criminal causes, are: The Production of the Evidence; The Arguments of Counsel; The Charge of the Court; and The Deliberations and Verdict of the Jury. The general rules, which govern the production of evidence, are the same in criminal as in civil cases. The principal special rules, applicable to criminal cases, are the following:

The state must prove affirmatively, and beyond a reasonable doubt, every material allegation in the indictment;

The testimony must be such as to exclude every reasonable hypothesis but that of the defendant's guilt;

The corpus delicti must be established by evidence other than the extrajudicial admissions of the accused;

Where a specific intent is alleged in the indictment, it must be proved as laid;

Circumstantial evidence is equally admissible, and may be equally conclusive, with direct evidence;

In capital cases, the evidence must be that of two competent witnesses or its equivalent;

In homicide, the declarations of he victim, made under the apprehension of impending death, are admissible to show the cause of the death, and the person of the slayer;

The voluntary confession of the accused, when made without fear or hope of favor, is competent evidence against him;

An accomplice is admissible as a witness against the accused, though the jury should be instructed not to convict on his uncorroborated testimony. The evidence of one accomplice is not corroborated by that of another;

Evidence of the character of the accused may be given in his behalf, but never against him, except in reply to such evidence first introduced in his favor;

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