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lowed him, he may, in answer to the arraignment, either move the court to set aside the indictment, or may demur or plead thereto.

The modes pointed out in this section are the only ones in which the defendant can, by the existing practice, answer the indictment.

CHAPTER IV.

SETTING ASIDE THE INDICTMENT.

SECTION 332. Indictment, when set aside on motion.

333. Defendant, when precluded from objecting to indictment in any other manner.

334. Motion, when heard.

335. If denied, defendant must immediately demur or plead.

336. If granted, defendant discharged, unless the case be submitted to the same or another grand jury.

337. Effect of order for re-submission.

338. New indictment in such case, when to be found.

339. Order to set aside indictment, no bar to another prosecution.

§ 332. The indictment must be set aside, by the court in which the defendant is arraigned, and upon his motion, in either of the following cases:

1. When it is not found, endorsed and presented, as prescribed in sections 284 and 288.

2. When the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, are not inserted at the foot of the indictment, or endorsed thereon, as prescribed in section

287.

3. When a person is permitted to be present during the session of the grand jury, while the charge em

braced in the indictment is under consideration, except as provided in section 266.

The practice provided in this section, is a substitute for the motion to quash an indictment, and comprizes, as the grounds for the motion, such matters only as affect the substantial rights of the defendant.

§ 333. If the motion to set aside the indictment be not made, the defendant is precluded from afterwards taking the objections mentioned in the last section.

By the existing practice, the motion to quash an indictment may, in the discretion of the court, be made after plea or demurrer. The grounds upon which it may be made, being such as do not affect the merits of the cause, though they may touch a substantial right, it is deemed proper to provide that the motion be made before plea or demurrer.

§ 334. The motion must be heard at the time of the arraignment, unless, for good cause, the court postpone the hearing to another time.

§ 335. If the motion be denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto.

§ 336. If the motion be granted, the court must order that the defendant, if in custody, be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him; unless it direct that the case be re-submitted to the same or another grand jury.

337. If the court direct that the case be re-submit

ted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment.

The last two sections are intended to prevent the setting aside of an indictment being productive of a prejudice to public justice, by leaving, it discretionary with the court, either to discharge the defendant or to re-submit the case to another grand jury.

338. Unless a new indictment be found, before the next grand jury of the county or city is discharged, the court must on the discharge of such grand jury, make the order prescribed by section 336.

To prevent undue delay, it seems proper to provide that the new indictment should be found within a prescribed time.

339. An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offence.

In accordance with the existing rule.

CHAPTER V.

DEMURRER.

SECTION 340. Only pleading for defendant, is demurrer or plea.

341. Demurrer or plea, when put in.

342. Grounds of demurrer.

343. Demurrer, how put in, and its form.

344. When heard.

345. Judgment on demurrer.

346. If allowed, judgment a bar to another prosecution, unless direction that the case be re-submitted to the same or another grand jury.

347. If re-submission not ordered, defendant discharged.

348. Proceedings, if re-submission ordered.

349. If demurrer disallowed, defendant may be permitted to plead. When he must do so, and effect of his omission.

350. When objections, forming ground of demurrer, may be taken at the trial, or in arrest of judgment.

§ 340. The only pleading on the part of the defendant, is either a demurrer or a plea.

§ 341. Both the demurrer and the plea must be put in in open court, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose.

The last two sections are in accordance with the present practice.

§ 342. The defendant may demur to the indictment, when it appears upon the face thereof, either,

1. That the grand jury, by which it was found, had no legal authority to inquire into the offence charged, by reason of its not being within the local jurisdiction of the county:

2. That it does not substantially conform to the requirements of sections 291 and 292:

3. That more than one offence is charged in the indictment:

4. That the facts stated do not constitute a public offence:

5. That the indictment contains any matter, which, if true, would constitute a legal justification or excuse of the offence charged, or other legal bar to the prose

cution.

The grounds of demurrer here stated do not vary from the present practice, and are all of them substantial.

§ 343. The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it may be disregarded.

§ 344. Upon the demurrer being filed, the objections presented thereby must be heard, either immediately, or at such time as the court may appoint.

§ 345. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it; and an order to that effect must be entered upon the minutes.

§ 346. If the demurrer be allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same cffence, unless the court, being of opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, direct the case to be re-submitted to the same or another grand jury.

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