See People v. McCarthy, 110 N. Y. 314; People v. Buddensieck, 103 id. 497; 5 N. Y. Cr. Rep. 71; 4 id. 230, 252; People v. Upton, 38 Hun, 110, 111; People v. Kelly, 31 id. 226; 2 N. Y. Cr. Rep. 18; People v. Osterhout, 34 Hun, 262; People v. Menken, 3 N. Y. Cr. Rep. 233; People v. Stevens, id. 582.

CHAPTER VII.

PLEA.

SECTION 332. The different kinds of pleas.

333. Plea, how put in.

334. Its form.

335. Plea of guilty, how put in.

336. Plea of insanity.

337. Plea may be withdrawn by permission of the court.

338. What is denied by a plea of not guilty.

339. What may be given in evidence under it.

340, 341. What is deemed a former acquittal.

342. If defendant refuse to answer indictment, plea of not guilty to

be entered.

332. The different kinds of pleas.- There are three kinds of pleas to an indictment; a plea of (1) guilty, (2) not guilty, (3) a former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of guilty. But no conviction shall be had upon a plea of guilty in either of the following cases: (a) where the crime charged is or may be punishable by death, or (b) where the crime charged is or may be punishable by imprisonment in a state prison for the term of life.

See People v. Cignarale, 110 N. Y. 29; People v. Petrea, 92 id. 128, 145; 30 Hun, 98, 101.

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

See People v. Petrea, 30 Hun, 98, 101; People v. O'Neil, 47 Hun, 157; People v. Osterhout, 34 id. 262.

As to standing mute, see note to § 342, post.

§ 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 pleads 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), on the

day of

§ 335. Plea of guilty, how put in.- 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 1 Bish. Crim. Proc., § 794a.

There is no provision of this Code which compels a corporation to plead to an indictment. People v. Equitable Gas-light Co., 6 N. Y. Cr. Rep. 189.

A plea of guilty obtained by duress or fraud is a nullity. Sanders v. State, 97 Ind. 147; 4 Crim. L. Mag. 359.

$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 2 Crim. L. Mag. 612; People v. McElvaine, 125 N. Y. 596.

337. Plea may be withdrawn by permission of the court. 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.

See "Withdrawal of Plea of Guilty," 11 Crim. L. Mag. 479; People v. Joyce, 4 N. Y. Cr. Rep. 348; Com. v. Mahoney, 115 Mass. 151; Pattee v. State, 109 Ind. 545; State v. Oehlslager, 38 Iowa, 297.

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

See § 331, ante; People v. Bradley, 33 State Rep. 565.

Former conviction cannot be given under a plea of not guilty. People v. Benjamin, 2 Park. 201.

$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 three hundred and thirty-two, may be given in evidence under the plea of not guilty. See People v. Cignarale, 110 N. Y. 29; People v. Durrin, 2 N. Y. Cr. Rep.

333.

340. What is deemed a former acquittal. If the defendant were formerly acquitted 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.

An acquittal on the ground of variance between the indictment and proof is not sufficient where the variance consisted in a failure to establish the particular offense charged. Canter v. People, 1 Abb. Dec. 305.

§ 341. What is deemed a former acquittal.— 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.

It must appear that the defendant was put in jeopardy by the former trial. Canter v. People, 1 Abb. Dec. 305. See People v. Barrett, 1 Johns. 66.

A former acquittal, though upon a defective indictment, may be pleaded in bar. In the absence of proof to the contrary, it will be presumed to have been upon the merits. Croft v. People, 15 Hun, 484.

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

See Abbott's Crim. Brief, 13; People v. Osterhout, 34 Hun, 262; 3 N. Y. Cr. Rep. 445; Reg. v. Bernard, 1 Fost. & Fin. 240; United States v. Berger, 19 Blatchf. 249; Ellenwood v. Com., 10 Metc. 222; Com. v. McKenna, 125 Mass. 397.

As to standing mute, see 4 Bl. Com. 435; 2 Hawk. P. C., chap. 30, § 14; 1 Chit. Crim. Law, 424; 1 East P. C. 135; 3 Am. Jur. 158; Reg. v. Berry, 1 Q B. D. 447; 17 Eng. Rep. 107; Matter of Smith, 3 Crim. Law Mag. 837.

17

CHAPTER VIII.

REMOVAL OF THE ACTION, BEFORE TRIAL.

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

344. When, and in what case, 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.

848. Decision on application for stay, to be indorsed on papers and

filed.

349. 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.

See Abbott's Crim. Brief, § 67.

The district attorney may remove a criminal cause to the supreme court as a matter of course and of right. People v. Vermilyea, 7 Cow. 109, 140-141; People v. Baker, 3 Park. 187, 188, 191; 3 Abb. Pr. 42; Baker v. Munro, 6 Cow. 396; 1 Chit. Crim. Law (5th Am. ed.), 378, note 1.

"The writ of certiorari is demandable as of right by the crown (R. v. Eaton, 2 T. R. 89), and issues as of course where the attorney-general or other officer of the crown applies for it, either as a prosecutor or as conducting the defense on behalf of the crown (Id.; R. v. Lewis, 4 Burr. 2458), and this even though the certiorari be expressly taken away by statute; for, unless named, the crown is not bound by statute." Arch. Cr. Pl. & Ev. (17th Eng. ed.) 95; Com. v. Capp, 48 Penn. St. R. 53, 56.

“The writ of certiorari is demandable of absolute right only by the king himself, and to him the court is bound to grant it (4 Burr. 2458; 2 T. R. 89; Hawk., b. 2, chap. 27, § 27; 1 East, 303, note d; Hand's Prac. 37; Dick. Sess. 382); and, therefore, when it is applied for by the attorney-general or other officer of the crown, either as a prosecutor, or when he takes up the defense

of the party indicted on account of his being an officer of the crown or for some other reason, it must issue as a matter of course, and the court has no discretion to exercise (4 Burr. 2458; 1 East, 303, note d; Hand's Prac. 37; Rex v. Thomas, Mich. Term, 1815), and even where a statute takes away the cer tiorari it does not extend to the crown (2 Chit. Rep. 136)." 1 Chit. Crim, Law (5th Am. ed.), 378.

Hawkins says (2 Hawk. Pleas Crown, Curwood's ed., p. 401, § 27): “SEC. 27. It hath been adjudged that wherever a certiorari is by law grantable for an indictment the court is bound of right to award it at the instance of the king, because every indictment is the suit of the king, and he has a prerogative of suing it in what court he pleases. But it seems to be agreed that it is left to the discretion of the court either to grant or deny it at the prayer of the defendant."

"The application for the certiorari, whether to a court or judge, except when made by the attorney-general, should be supported by an affidavit stating the grounds for it. As to what grounds are sufficient, see ante, 625; R. v. Inhabitants of Clare, 4 Burr. 2458; R. v. Stannard, 4 T. R. 161; R. v. Burgess, 1 Kenyon, 135; " 1 Burn's Justice (30th ed.), 634.

"And general words in an act taking away the certiorari will not bind the crown unless such an intention is to be collected from other parts of the act. R. v. Allen, 15 East, 333, 342; R. v. Anon, 2 Chitty, 136; R. v. Habe, 5 T. R. 542; R. v. Davies, id. 626; R. v. Cumberland, 6 id. 194; ' 1 Burn's Justice (30th ed.), 618; Queen v. Spencer, 9 Ad. & Ell. 485; 36 Eng. C. L. R. 264. "The rule that a statute taking away certiorari does not bind the crown unless named, is not limited to cases where the crown has an actual interest, but extends to all prosecutions in the name of the king." The King v. Boultbee, 4 Ad. & Ell. 498; 31 Eng. C. L. R. 226. See, also, People v. Herkimer, 4 Cow. 346.

Notice of the application need not be given to defendant. People v. Carolin, 115 N. Y. 658; People v. Vail, 6 Abb. N. C. 211.

§ 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 cannot be had in the county or city where the indictment is pending.

5 N. Y. Cr. Rep. 160, note; Abbott's Crim. Brief, 38. See People, ex rel., v. Oyer and Terminer, 101 N. Y. 251; 4 N. Y. Cr. Rep. 75; 3 How. Pr. (N, S.) 418: People v. Squire, 1 N. Y. State Rep. 534; 4 N. Y. Cr. Rep. 444; People v. Witbeck, 1 Alb. L. J. 195; McFarland's Case, 7 Abb. Pr. (N. S.) 348.