Cas 66; Id v. Olcott, 2 id. 60; People v. Cramer, 5 Pai. 171; People v. McClos key, ib. 57; People v. Saunders, 4 id. 196; People v. Warren, 1 id. 338; People v. Allen 1 id. 445; People v. Van Keuren, 5 id. 66; People v. Kramer, 4 id. 217; People v. Townsend, 3 Hill, 479; People v. Krumer, 1 Sheld. 540; Gardner v. People, 6 Park, 155, 190; People v. Casborus, 13 John. 351. Where wrong judgment rendered on regular conviction, can not retry. Shepherd v. People, 25 N. Y. 406; but may remit record and resentence. Hussy v. People, 47 Bar. 503. When former judgment reversed, new indictment may be found. Kelly v People, 6 Hun, 509. See People v. Ruloff, 5 Park. 77. What is jeopardy? Canter v People, 1 Abb Dec. 305; Burns v. People, 1 Park. 182; People v. Comstock, 8 Wend. 519; O'Connell v. People, 62 How. Pr. 436; aff'd Ct. App.; Craft v. People, 15 Hun, 484. Insufliciency of evidence no plea. Hope v. People 83 N. Y. 418. People v. Petrea, 92 N. Y. 128; 30 Hun, 98; People v. Cig narale, 110 N. Y. 29; People v. Trimble, 60 Hun, 365; People v. McHale, 39 N. Y. St. Rep. 761; People v. McEwen, 67 How. 105; 2 N. Y. Cr. 307; People v. Osterhout, 34 Hun, 260; People v. Cotto, 42 N. Y. St. Rep. 713, 717.

§ 333. Plea, how put in. - Every plea must be oral, and must be entered upon the minutes of the court.

See 342, post. People v. Petrea, 30 Hun, 98; People v. Osterhout, 34 id. 262; People v. O'Neil, 47 id. 157; People v. McHale, 39 N. Y. State Rep. 761.

§ 334. Its 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." 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), rendered at (naming the place),

People v. O'Neil, 47 Hun, 157; People v. McHale, 39 N. Y. State Rep. 761.

§ 335. Plea of guilty, etc.—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.

See Sanders v. State, 97 Ind. 147; People v. Gas-Light Co. 6 N. Y. Cr. 189; People v. Joyce, 4 id. 311.

§ 336. 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.

See 658 post. Prisoner is entitled to benefit of any reasonable doubt as to his sanity. Brotherton v. People, 75 N. Y., 159; People v. McCann, 16 N. Y. 70. People v. McElvaine, 125 N. Y. 600. See 2 N. Y. Cr. 338.

§ 337. Plea may be withdrawn, etc.-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.

People v. Joyce, 4 N. Y. Cr. 448; Pattee v. State, 109 Ind. 545; Com. v. Mahoney, 115 Mass. 151; State v. Oehlslager, 38 Iowa, 297.

§ 338. What is denied by plea of not guilty. The plea of not guilty is a denial of every material allegation in the indictment.

See 331, ante. Former conviction can not be given under plea of not guilty. People v. Benjamin, 2 Park. 201. People v. Bradley, 33 N. Y. St. Rep. 565; People v. McHale, 39 id. 761.

§ 339. What may be given in evidence under it.— All matters of fact, tending to establish a defense, other than that specified in the third subdivision of section 332, may be given in evidence under a plea of not guilty.

People v. Cignarale, 110 N. Y. 29; People v. Durrin, 2 N. Y. Cr. 333; People v. McHale, 39 N. Y. St. Rep. 761.

§ 340. What is deemed a former acquittal.- If the defendant were formerly acquittal on the ground of a variance between the indictment and the proof, or 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.

Canter v. People, 1 Abb. Dec. 305; People v. Meakim; 61 Hun, 327.

§ 341. Id. 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.

Former acquittal presumed to be on merits. Croft. People, 15 Hun, 484. Canter v. People, 1 Abb. Dec. 305; People v. Barrett, 1 John. 66.

§ 342. If defendant refuse to answer indictment, etc.- If the defendant refuse to answer an indictment, by demurrer or plea, a plea of not guilty must be entered.

See 330, ante. People v. Osterhout, 20 W. Dig. 294; 34 Hun, 262; 3 N. Y. Cr. 445; Com. v. McKenna, 125 Mass. 397; Ellenwood v. Com. 10 Metc. 222; U. S.. Berger, 19 Blatchf. 249. See 107 U. S. 221; People v. McHale, 39 N. Y. St. Rep. 761.

CHAPTER VIII.

REMOVAL OF THE ACTION, BEFORE TRIAL.

SEC. 343. Existing writs and proceedings, to remove indictment before trial abolished.

344. When, and in what cases, indictment may be removed before trial. 345. If former trial were had, indictment may be removed before the new trial.

346. Application for removal, how made.

347. Stay of trial, how obtained, to enable defendant to apply for removal. 348. Decision on application for stay, to be indorsed on papers and filed. 319. If application for stay be denied, no other application can be made. 350. Violation of last section, a misdemeanor and contempt, and order of removal to be vacated.

351. Order of removal to be filed, and pleadings and proceedings to be transmitted.

352. Proceedings on removal, if defendant be in custody.

353. Order for removal must be filed, before a juror is sworn. Authority of the court to which indictment is removed.

§ 343. Existing writs and proceedings, to remove indictment before trial 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.

People v. Baker, 3 Park. 187; 3 Abb. 42; People v. Vermilyea, 7 Cow. 109, 140, 141; Baker v. Munro, 6 Cow. 396; People v. Vail, 6 Abb. N. C. 211; People v. Carolin, 115 N. Y. 658.

§ 344. 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:

1. From a court of sessions or a city court, to the court of oyer and terminer of the same county, for good cause shown;

2. From a court of oyer and terminer or sessions, or a city court, to the court of oyer and terminer of 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.

People v. Sessions, 62 How. P. R. 415; Thompson v. People, 6 Hun, 135; Dolan v. People, ib. 493; s. c. 64 N. Y. 485. People ex rel. Munsell v. Oyer, etc. 101 N. Y. 245, 251; 4 N. Y. Cr. 75; 3 How. (N. S.) 418; People v. Squire, 4 N. Y. Cr. 444; People v. Sharp, 5 id. 155; People v. Sammis, 3 Hun, 560; People v. Vermilyea, 7 Cow. 139; People v. Bodine, 7 Hill, 147; People v. Rourke, 11 Abb. N. C. 89; People v. Witbeck, 1 Alb. L. J. 195; People v. Baker, 3 Park. 181; 3 Abb. 42; People v. Long I R.Co 4 Park. 602; McFarland's Case, 7 Abb. (N. S.) 348; People v. Myers, 2 Hun, 6; State v. Albee, 61 N. H. 423; 60 Am Rep. 325; Perteet v People, 70 Ill. 171; People v. McGarvey, 56 Cal. 327; Wheeler v. State, 24 Wis. 52; 15 N. Y. Supp. 79.

§ 345. If former trial, etc.-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.

§ 346. Application for removal, etc.—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.

What affidavits must contain. People v. Bodine, 7 Hill, 147; People v. L. I. R. R. Co. 4 Park. 602; People v. Harris, 4 Den. 150; People v. Baker, 3 Park. 181; People v. Sammis, 3 Hun, 560. People v. Rourke, 11 Abb. N. C. 89; People . Clark, 5 N. Y. L. J. 243; People v. Sessions, 10 Abb. N. C. 192; 62 How. 415.

§ 347. Stay of trial, how obtained, etc.-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.

People. Rourke, 11 Abb. N. C. 89; People v. Sessions, 10 id. 192; 62 How. 415.

§ 348. Decision on application for stay, etc.—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.

§ 349. If application for stay be denied, etc.-If the application for an order to stay the trial has been made before one judge and denied, a similar application can not be made to another judge.

§ 350. Violation of last section, etc.—A violation of the last section is punishable not only as a misdemeanor, but as a comtempt of the court in which the indictment is pending; and that court must vacate an order of removal made in violation thereof.

People ex rel. Munsell . Oyer, etc. 101 N. Y. 251; 4 N. Y. Cr. 75; 36 Hun, 277; 3 N. Y. Cr. 208.

§ 351. Order of removal, etc. - 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.

§ 352. Proceedings on removal, if defendant be in custody.If the defendant be in custody, and the removal be to the court of

oyer and terminer of 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.

§ 353. Order for removal must be filed, etc. 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.

Loomis v. People, 19 Hun, 601.

TITLE VI.

Of the Proceedings on the Indictment, before Trial.

CHAPTER I. The mode of trial.

II. Formation of the trial jury.

III. Challenging the jury.

§ 354. Issue of fact, defined. An issue of fact arises,

1. Upon a plea of not guilty; or

2. Upon a plea of a former conviction or acquittal of the same crime.

People v. Williams, 35 Hun, 516; 3 N. Y. Cr. 62; People v. Haight, 13 Abb. N. C. 199.

$355. How tried. An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into the court of oyer and terminer of another county, as provided in the second subdivision of section 344.

Indictments before Code. Willett v. People, 92 N. Y. 29; People v. Augs bury, 97 ib. 501. People v. Williams, 35 Hun, 518; 3 N. Y. Cr. 62; People v. Penhollow, 42 Hun, 103; Twitchell. Com. 7 Wall, 321; People v. Clark, 33 Hun, 376; People v. Haight, 11 Abb N. C. 199; Blake v. Everman, 56 Hun, 453; People v. Hall, 57 How. 342; People v. Cancemi, 18 N. Y. 123; People v. Wynehamer. 13 id. 378; People ex rel. Baldwin ♥. Hawes, 37 Barb. 440; State v. Davis, 66 Mo. 684; 27 Am. Rep. 387; Com. v. Costley, 118 Mass. 1; State v. Carman, 63 Iowa, 130; 50 Am. Rep. 741: State v. Albee, 61 N. H. 423; 60 Am. Rep., 325; State v. Kaufman, 51 Iowa, 578; Swart. Kimball, 44 Mich. 443.