on arrest of SEC. 264. The defendant, if the offence be punishable with death, Proceedings when arrested under the warrant, shall be held in custody by the defendant. sheriff of the county in which the indictment is found, unless admitted to bail, upon an examination upon a writ of habeas corpus. SEC. 265. If the offence be not capital, the bench warrant shall be The like. in a similar form, adding to the body thereof a direction to the following effect, "Or if he require it, that you take him before any magistrate in that county, or in the county in which you arrested him, that he many give bail to answer to the indictment." SEC. 266. If the offence charged be not capital, the court upon The like. directing the bench warrant to issue shall fix the amount of bail, and an endorsement shall be made upon the bench warrant signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of - dollars." how served. SEC. 267. The bench warrant may be served in any county, in the Warrant, same manner as a warrant of arrest, except that when served in another county it need not be endorsed by the magistrate of that county. another county. SEC. 268. If the defendant be brought before a magistrate of Bail, in another county for the purpose of giving bail, the magistrate shall proceed in all respects thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings may be had thereon, as provided in sections one hundred and fourteen to one hundred and seventeen, both inclusive. bail, may be custody. SEC. 269. When the indictment is for a felony, and the defendant Defendant, on before the finding thereof has given bail for his appearance to answer ordered into the charge, the court to which the indictment is presented, may order the defendant to be committed to actual custody, unless he give bail in an increased amount, to be specified in the order. be committed. SEC. 270. If such order be made and the defendant be present, he Defendant to shall be forthwith committed accordingly. If he be not present, a bench warrant shall be issued and proceeded upon in the manner provided for in this chapter. be asked if he SEC. 271. If the defendant appear for arraignment without counsel, Defendant to he shall be informed by the court that it is his right to have counsel desires counsel. before being arraigned, and shall be asked if he desire the aid of counsel. how made. SEC. 272. The arraignment must be made by the court, or by the Arraignment, clerk or the district attorney under its direction, and consists in reading the indictment to the defendant and delivering to him a copy thereof, and of the endorsements thereon, including the list of wit Defendant to declare his name. No name given. Entry of name on minutes. Time to answer. Answer, etc. nesses endorsed on it, and asking him whether he pleads guilty or not guilty to the indictment. SEC. 273. When the defendant is arraigned he shall be informed that if the name by which he is indicted be not his true name he must then declare his true name, or be proceeded against by the name in the indictment. SEC. 274. If he give no other name, the court may proceed accordingly. SEC. 275. If he allege that another name is his true name, the court shall direct an entry thereof in the minutes of the arraignment, and the subsequent proceedings on the indictment may be had against him by that name, referring also to the name by which he is indicted. SEC. 276. If on the arraignment the defendant require it, he shall be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment. SEC. 277. If the defendant do no require time as provided in the last section, or if he do, then on the next day, or at such future day as the court may have allowed him, he may answer to the arraignment; either move the court to set aside the indictment, or may demur or pled thereto. When indictment will be set aside. The like. When waived. CHAPTER IV. SETTING ASIDE THE INDICTMENT. SECTION 278. The indictment shall be set aside by the court in which the defendant is arraigned, and upon his motion in either of the following cases: 1st. Where it is not found, endorsed, and presented as prescribed in this act. 2d. Where 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. 3d. Where any person is permitted to be present during the session of the grand jury, while the charge embraced in the indictment is under consideration, except as provided in section two hundred and sixteen. SEC. 279. When the defendant had not been held to answer before the finding of the indictment, he may move to set it aside, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror. SEC. 280. If the motion to set aside the indictment be not made, the defendant shall be precluded from afterwards taking the objections mentioned in the last two sections. SEC. 281. The motion shall be heard when it is made, unless for Hearing good cause the court shall postpone the hearing to another time. of motion to set aside. SEC. 282. If the motion be denied, the defendant must immediately Motion denied. answer the indictment, either by demurring or pleading thereto. SEC. 283. If the motion be granted, the court shall order that the Motion granted. 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 same shall be refunded to him, unless it direct that the case be submitted to the same or another grand jury. mitted. SEC. 284. If the court direct that the case be re-submitted, the de- Case re-subfendant, if already in custody, shall 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 shall be answerable for the appearance of the defendant to answer a new indictment. defendant's SEC. 285. Unless a new indictment be found before the next grand Order for jury of the county is discharged, the court shall, on the discharge of discharge. such grand jury, make the order prescribed in section two hundred and eighty-three. set aside, no SEC. 286. An order to set aside an indictment, as provided in this Indictnt chapter, shall be no bar to a future prosecution for the same offence. bar to future prosecution. CHAPTER V. DEMURRER. SECTION 287. The only pleading on the part of the defendant is Pleadings by either a demurrer or a plea. open defendant. Demurrer and plea, when SEC. 288. Both the demurrer and the plea must be put in court either at the time of the arraignment, or at such other time as to be put in. may be allowed to the defendant for that purpose. may demur. SEC. 289. The defendant may demur to the indictment when it shall When defendant appear upon the face thereof, either- First: 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 legal jurisdiction of the county. Second: That it does not substantially conform to the requirement of sections two hundred and thirty-seven and two hundred and thirty-eight. Third: That more than one offence has been charged in the indictment. Fourth: That the facts stated do not constitute a public offence. Fifth 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 prosecution. in writing. SEC. 290. The demurrer must be in writing, signed either by the Demurrer to be defendant or his council, and filed. It must distinctly specify the What to specify. grounds of objection to the indictment, or it shall be disregarded. Argument on demurrer. Judgment on demurrer. Effect of allowance of demurrer. If case not Where case Effect of disallowing demurrer. Objections, how must be taken. Kinds of pleas. Plea to be oral. Form of entry of plea. SEC. 291. Upon the demurrer being filed, the argument of the objections presented thereby shall be had either immediately, or at such time as the court may appoint. SEC. 292. Upon considering the demurrer, the court shall give judgment either allowing or disallowing it, and an order to that ef fect shall be entered on the minutes. SEC. 293. If the demurrer be allowed, the judgment shall be final upon the indictment demurred to, and shall be a bar to another pros ecution of the same offence, 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. SEC. 294. If the court do not direct the case to be re-submitted, the defendant if in custody, shall be discharged, or if admitted to bail, his bail shall be exonerated, or if he has deposited money instead of bail, the money shall be refunded to him. SEC. 295. If the court direct that the case be re-submitted anew, the same proceedings must be had thereon as are prescribed in sections two hundred and eighty-four and two hundred and eighty-five. SEC. 296. If the demurrer be disallowed, the court shall permit the defendant at his election to plead, which he must do forthwith, or at such time as the court may allow; if he do not plead, judgment shall be pronounced against him. SEC. 297. When the objections mentioned in sections two hundred and eighty-nine appear upon the face of the indictment, they can only be taken advantage of by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offence, may be taken at the trial under the plea of not guilty and in arrest of judgment. CHAPTER VI. PLEAS. SECTION 298. There are three kinds of pleas to an indictment. A plea of First: GUILTY. Second: NOT GUILTY. Third: A former judgment of conviction or acquittal of the offence charged, which may be pleaded, either with or without the plea of "not guilty." SEC. 299. Every plea shall be oral, and shall be entered upon the minutes of the court. SEC. 300. The plea shall be entered in substantially the following form: First if the defendant plead guilty, "the defendant pleads that he is guilty of the offence charged in this indictment." Second: : If he plead not guilty, "The defendant pleads that he is not guilty of the offence charged in this indictment." Third: If he plead a former acquittal or conviction, "the defendant pleads that he has already been convicted (or acquitted as the case may be) of the of fences charged in this indictment by the judgment of the court of (naming it) rendered at (naming the place) on the day of SEC. 301. A plea of guilty can in no place be put in, except by Plea of guilty. the defendant himself in open court, unless upon indictment against a corporation, in which case it may be put by counsel. plea. SEC. 302. The court may, at any time before judgment, upon a plea withdrawing of guilty, permit it to be withdrawn, and a plea of not guilty substituted. SEC. 303. The plea of not guilty shall be deemed a denial of material allegation in the indictment. Effect of plea every of not guilty. be given in under plea SEC. 304. All matters of fact tending to establish a defence other What may than that specified in the third subdivision of section two hundred evidence and ninety-eight, may be given in evidence under the plea of not of not guilty. guilty. a former SEC. 305. If the defendant were formerly acquitted on the ground What not of a variance between the indictment and the proof, or upon an ob- acquittal. jection to the form or substance of the indictment, it shall not be deemed an acquittal of the same offence. acquittal. Sec. 306. When, however, he shall have been acquitted on the What a former merits. he shall be deemed acquitted of the same offence, notwithstanding any defect in form or substance in the indictment on which he was acquitted. conviction or SEC. 307. When the defendant shall have been convicted or acquit- Effect of former ted upon an indictment, the conviction or acquittal shall be a bar to acquittal. another indictment for the offence charged in the former, or for an attempt to commit the same, or for an offence necessarily included therein, of which he might have been convicted under that indictment, as provided in section four hundred and twenty-four. SEC. 308. If the defendant refuse to answer the indictment by de- Defendant murrer or plea, a plea of not guilty shall be entered. standing mute CHAPTER VII. REMOVAL OF CERTAIN INDICTMENTS FROM THE COURT OF SESSIONS TO THE DISTRICT COURT. indictments SECTION 309. When an indictment is found in the court of sessions, for Certain murder, manslaughter, or arson, it shall be transmitted by the clerk |