oner, instead of standing mute, answer that he is guilty, it will only remain for the court to pass sentence; except in the case of murder, where, by special provision, the court are required to hear testimony to determine the degree of murder. But if he deny his guilt, it must be one of the modes pointed out by the common law; for neither the federal nor State laws provide any other way. These modes are as follows: first, a plea to the jurisdiction; secondly, a demurrer; thirdly, a plea in abatement; fourthly, a special plea in bar; or fifthly, the general issue of not guilty; for we have no such pleas as sanctuary or benefit of clergy; neither of which absurdities has ever been allowed in this country.

1. A Plea to the Jurisdiction. This is the proper course when the indictment is found before a court having no jurisdiction of the offence. We have already considered the distribution of criminal jurisdiction, among the federal and State courts, and nothing further need be said here.

ing the want of jurisdiction]; and this the said

is ready to verify. Wherefore he prays judgment if this court will take cognizance of the indictment aforesaid, and that he may be permitted to go hence without day.

The replication to this plea, which is put in by the prosecuting attorney, states that the court ought not to be precluded from taking cognizance of the indictment, and gives the reasons; and then concludes with a prayer that the prisoner may be held to answer to the indictment.

2. Demurrer. And the said ing heard the said indictment read, says that the same, and the matters and things therein contained, in manner and form as the same therein stated, are not sufficient in law, and that he is not bound by the law of the land to answer the same; wherefore, for want of a sufficient indictment, he prays judgment that he be permitted to go hence without day.

in his proper person comes into court, and hav

The joinder asserts the sufficiency of the indictment, and prays that the prisoner may be convicted.

3. Plea of a Misnomer. And now, name of

-, who in this indictment is called by the in his proper person comes into court, and having heard this indictment read, says that his name is by which name he has always hitherto been known and called, without this, that he now is, or hitherto has been called or known by the name of -, as in the said indictment is supposed; and this he is ready to verify; wherefore he prays judgment of the said indictment, and that the same may be quashed.

The replication states that he is, and long has been, known and called, as well by the name mentioned in the indictment, as by that mentioned in the plea; and concludes to the country. It has been decided that a plea of misnomer is the only way of taking advantage of it. After verdict the objection is waived. Smith e. State, 8 Ohio, 294. As to what is a misnomer, see Rockville v. The State, 12 Ohio St. 427. The criminal code provides that if the defendant pleads misnomer, he must give his true name, which shall be at once substituted, and the proceedings go on. This was held constitutional in Lasure v. The State, 19 Ohio State, 43.

holden at

4. Plea of Former Acquittal. And the said —, in his proper person comes into court, and having heard the said indictment read, says that the State ought not further to prosecute the same against him, because he says that heretofore, to wit, at the court of on the [here set forth the record of the former verdict, judgment, and acquittal]; as by the record thereof now remaining in said court more fully appears; and the said avers that he is the same person, and the offence in the present indictment charged is the same offence as in the said record and acquittal are contained; and this he is ready to verify; wherefore he prays judgment, and that he may be permitted to go hence without day.

The replication is nul tiel record; unless the fact of identity of person or offence be denied, in which case it is a traverse concluding to the country. It has been held that this plea must set forth the judgment as well as the verdict, because there is no acquittal until judgment. Hurley v. State, 6 Ohio, 399.

2. A Demurrer. This is the proper course, when, admitting the truth of the facts alleged, they do not make out the offence intended. Thus the demurrer here has the same office as in civil cases. If the demurrer should be sustained, it would be the acquittal of the prisoner; for, as we have already seen, there can be no amendment after the discharge of the grand jury. If the demurrer should be overruled, there can be little doubt that the prisoner would still be allowed to make an issue of fact, by putting in a plea. However, as there has been some uncertainty on this point, and as the same question may be raised on the general issue, or in arrest of judgment, or in writ of error, it is generally best not to demur.

3. A Plea in Abatement. This is chiefly confined to a misnomer of the prisoner. It must be accompanied with an affidavit stating the true name. Of course, delay is the only advantage gained; and this plea is therefore seldom pleaded.

4. A Special Plea in Bar. This is the proper course when, admitting the truth and sufficiency of the indictment, the defendant has a reason to offer why he ought not to be tried. The only pleas in bar which can be pleaded in this country are, a former acquittal; a former conviction; or a pardon. There can be no such plea as a former attaint, because attainder is expressly prohibited, as we have seen, by the federal and State constitutions. A former acquittal, called autrefois acquit, and a former conviction, called autrefois convict, are both founded upon the fundamental principle, asserted in the federal and State constitutions, as we have already seen, (a) that no man "shall be twice put in jeopardy for the same offence.' This declaration is general, and includes every offence. If, therefore, the prisoner has been formerly tried, and either acquitted or convicted of the same identical offence, it is a complete defence against the present indictment; but the jeopardy does not exist until there has been a judgment rendered. If the jury were discharged, on the former trial, without rendering a verdict; or if judgment were arrested; or a new trial granted; there has been no jeopardy in the legal sense of the term; and neither of these pleas can be set up to a subsequent indictment, or to the same indictment at a subsequent term, founded on the same cause. (b) A pardon can only be pleaded in bar, where it is competent to grant a pardon before conviction,

(a) See 2 Story's Com. § 1787; People v. Goodman, 18 Johns. 187; U. S. v. Perez, 9 Wheat. 579.

(b) The prisoner cannot be tried again for the same offence where the jury, after having retired to consult on their verdict, are discharged without his assent, or any legal cause for such discharge. Poage v. The State, 3 Ohio State, 229. But where a jury, after long deliberation in a capital case, cannot agree, they may be discharged by the court, without the assent of the prisoner, and the accused held to a further trial. The record must show the facts. Dobbins v. The State, 14 Ohio State, 493. And where a jury has been impanelled, and is afterwards discharged in consequence of the then discovered incompetence of a juror, the prisoner insisting on such incompetence must be held to have assented to such discharge, and a new jury may be impanelled. Stewart v. The State, 15 Ohio St. 125.

since, after conviction, there can be no occasion to plead it. This may be done in England. Perhaps it may be done by the constitution of the United States, for the language is not precise; but in the constitution of this State the power to pardon is expressly limited to cases after conviction. Consequently, there is no opportunity here for a plea of pardon. If either of these special pleas be decided against the defendant, it does not conclude him; for in favor of life or liberty, he is still permitted to plead the general issue, and require his guilt to be proved.

5. The General Issue. (a) In all criminal cases the general issue is simply not guilty; and under this issue the defendant may set up every possible defence. It is seldom, therefore, that any other plea is put in. Upon entering this plea, which is by a mere memorandum made by the clerk on the back of the indictment, much of the formality practised in the English courts is dispensed with. There is seldom, if ever, a joinder or similiter entered at the time, and it is doubtful if the want of it could be objected to even in the final record.

§ 243. Trial. (b) In all criminal prosecutions, the right "to have a speedy public trial, by an impartial jury of the county or district in which the offence shall have been committed," is expressly secured to the prisoner both by federal and State consti

(a) The plea of not guilty traverses the whole of the indictment. The indictment charges an act and a criminal intent, except in the few cases where the law punishes an act without reference to the intent with which it is done. The State is required to prove the offence charged, and hence every material averment in the indictment, beyond a reasonable doubt. Evidence offered to prove the insanity of the accused, is evidence offered to prove that he could not, and therefore did not, have a criminal intent. In some States it is therefore held that if the evidence raises a reasonable doubt of the sanity of the accused, it raises such doubt as to his criminal intent, and he is entitled to an acquittal. State v. Jones, 50 N. H. 369; State v. Johnson, 40 Conn. 136; Moett v. People, 85 N. Y. 374; Dove v. State, 3 Heisk. (Tenn.) 348; Cunningham v. State, 56 Miss. 272, Gueting v. State, 66 Ind. 94; Chase v. People, 40 Ill. 352; People v. Garbutt, 17 Mich. 9; State v. Crawford, 11 Kan. 32; Wright v. People, 4 Neb. 408.

But a greater number of States hold that the defence of insanity must be made out by a preponderance of evidence. State v. Lawrence, 57 Me. 574; Commonwealth v. Heath, 11 Gray, 303; apparently in State v. Hoyt, 46 Conn. 330; in State v. Spencer, 1 Zab. 201; Sayres v. Commonwealth, 88 Pa. St. 301; Baccigalupo v. State, 33 Gratt. 807; State v. Strauder, 11 W. Va. 745, 823; Boswell v. State, 63 Ala. 307; State v. Coleman, 27 La. Ann. 691; Johnson v. State, 10 Tex. App. 571; McKenzie v. State, 26 Ark. 334; Kriel v. Commonwealth, 5 Bush, 587; Bergin v. State, 31 Ohio St. 115; State v. Felter, 32 Iowa, 50; State v. Redemeier, 71 Mo. 173; People v. Wilson, 49 Cal. 14. In Delaware the accused is bound to prove his insanity beyond a reasonable doubt. State v. Pratt, 1 Houston, Crim. Cas. 269.

The claim of self-defence being a denial of the malice which the State is bound to prove beyond a reasonable doubt, it is held in some States that the defendant is entitled to an acquittal if, upon the evidence, it is doubtful whether the homicide or assault was malicious or was in self-defence. State v. People, 53 N. Y. 164; State v. Porter, 34 Iowa, 131; State v. Wingo, 66 Mo. 181. So held in cases of assault and battery in Massachusetts. Commonwealth v. McKie, 1 Gray, 61. It is held that the accused must establish the fact of self-defence by a preponderance of evidence. People v. Shroyer, 42 N. Y. 1; Weaver v. State, 24 Ohio St. 584.

As to shifting the burden of proof in cases of larceny and forgery. State v. Merrick, 19 Me. 401; State v. Flye, 26 Me. 312.

(b) See 4 Black. Com. chap. 27; 1 Chitty's Crim. Law, chap. 12; 2 Swift's Dig. 403; ante p. 199.

tutions; and thus the ancient and absurd methods of trial by ordeal, by corsned, and by battle, as described by Blackstone, are for ever abrogated.

Place of Trial. By the State law, the trial must be had in the county where the offence was committed, unless it be shown to the court by affidavit that a fair trial cannot there be had; in which case, the venue may be changed to an adjoining county. Whether this can be done at the instance of the prisoner only, or on motion of the prosecuting attorney also, is not specified, and may admit of much doubt. Where poison has been given, or a mortal blow inflicted in one county, and the death takes place in another, there might be some doubt in which the offence could be said to be committed; and to remove this doubt our statute provides that the trial shall be in the former. It may also be made a question, when goods are stolen in one county and carried into another, in which the trial shall be. Probably in the former, though I am not aware that the point has been decided with respect to counties. (a) With respect to States, (b) there have been. contradictory decisions. In Massachusetts it has been held that a thief who stole goods in another State, and brought them there, might be tried and punished there, as for a continued larceny; but in New York the contrary has been held, and this would seem to be the better opinion. By the federal constitution, the trial must be in the State or district where the offence was committed; and if not committed within any district, then where Congress shall appoint; and Congress has provided that it shall be in the district where the offender is apprehended, or into which he is first brought; also, that in capital cases the trial shall be had in the county where the offence was committed, unless it would be attended with great inconvenience; in which case, at least twelve of the petit jurors shall be from that county; but there is no provision in any case for a change of venue.

Time of Trial. We have already seen that the trial must be at the same term in which the indictment is found, unless there be good reason for postponement; (c) and by our statute the prisoner, in capital cases, is entitled to a copy of the panel of the jury twelve hours before the trial. Nothing is said as to other offences, or as to a list of the witnesses. By the act of Congress, in case of treason, the prisoner is entitled to a list of the jury and witnesses against him, three days before the trial;

(a) Where the poison is prescribed and furnished in one county to a person who carried it into another county, and there took it and died thereof, the crime of homicide in administering poison is committed in the latter county, and must be tried there. Robbins v. The State, 8 Ohio State, 131.

(b) See Commonwealth v. Andrews, 2 Mass. 14; People v. Gardner, 2 Johns. 477. (c) By $$ 161-163 the prisoner is entitled to his discharge if not brought to trial before the end of the second term of the court having jurisdiction of the offence held after the indictment is found, or if bailed, of the third term, unless the court are satisfied that reasonable exertions have been made, and that there is just ground to believe that the evidence can be had at the succeeding term.

and to a list of the jury, in all other capital cases, two days before the trial.

Petit Jury. The trial or traverse jury is so called, to distinguish it from the grand jury. These jurors must have the same qualifications, and are selected, drawn, and summoned in the same way as grand jurors. In all but capital cases, twelve only are summoned. In capital cases, our statute requires thirty-six. The act of Congress is silent respecting the number, and it is left to the discretion of the court. If the requisite number be not at hand, the panel may be filled as in other cases, with talesmen from the by-standers. In all criminal trials, our statute allows the State and the prisoner each to challenge (a) two jurors peremptorily, that is, without assigning cause: and in capital cases, the prisoner may challenge twenty-three peremptorily. (b) The act of Congress allows no peremptory challenge by government; but in treason the prisoner may challenge thirty-five peremptorily: in the other capital offences mentioned in the act of 1790, he may challenge twenty; and in all capital offences created since that act, thirty-five, as at common law; but in offences not capital, there is no peremptory challenge. (c) Challenges for cause must, of course, be without limit as to number. These challenges may be to the whole array, if not summoned according to law; otherwise, to the individuals as they are called. The causes of challenge are, first, a want of any of the prescribed qualifications; and secondly, some presumed or actual bias, founded on relationship or enmity to the prisoner, or the having formed or expressed an opinion. (d) The panel must be full before the challenge begins; and no challenge can be

(a) Where several offenders are tried together, each has his full number of challenges, but the State only has two. Mahan v. State, 10 Ohio, 232. And see on the subject of challenge, Hooker v. State, 4 Ohio, 348; Bixby v. State, 6 id. 83; Doyle . State, 17 id. 222; Fouts v. The State, 8 Ohio State, 98; People v. Rathbun, 21 Wend. 509; People v. Mather, 4 id. 229; People v. Vermilyea, 6 Cowen, 555, and 7 Cowen, 108; People v. Bodine, 1 Denio, 281; Commonwealth v. Knapp, 9 Pick. 495; Webster's Trial, 6.

(b) The act of Feb. 25, 1859, amending the act of Feb. 9, 1831, determines the causes of challenge, and the mode of trying them. The act of March 30, 1860, provides that an opinion formed as to the guilt or innocence of the accused, from rumor or newspaper statements, shall not disqualify a juror, if he states, and the court is satisfied, that he can render an impartial verdict upon the law and evidence. This act was held constitutional in Cooper v. The State, 16 Ohio State, 328. This act is substantially re-enacted by § 134 of the Criminal Code as amended February 10, 1872 (69 Ohio Laws, 11), except that a distinction is now taken between opinions formed on mere reports, and those formed on conversations with witnesses, or reading their testimony, or hearing them testify.

(c) Under the act of July 20, 1840, 5 Stat. at Large, 394, the courts may regulate the challenges of jurors, except that they cannot take from the prisoner his right of peremptory challenge in cases of treason and other crimes punishable with death. United States v. Shackleford, 18 How. 588.

(d) Parks v. The State, 4 Ohio State, 234. The expression of a juror before trial of a hypothetical opinion as to the guilt of a prisoner, dependent upon a certain state of facts, without any expression of opinion as to the existence of those facts, is not a ground for a new trial. Laffner v. The State, 10 Ohio State, 598. If no inquiry is made of the jury as to causes of challenge until after verdict, the prisoner will not necessarily be entitled to a new trial, though the cause was unknown to the prisoner. So held in a case where one of the jurors had been on the grand jury that found the indictment. Beek v. The State, 20 Ohio St. 228.