on indictment charging receiving and withholding stolen property is a bar to prosecution upon a count charging the taking into possession such property, a foreign shipment, the same having been stolen, the same character and degree of proof being necessary, but not to a count charging larceny of the property while moving in interstate commerce.50 A past offense which is in its nature continuous cannot be split into several intermediate crimes which are separately punished under the same statute.51 Thus there cannot be three successive terms of imprisonments for continuous unlawful cohabitation which continued for three years.52 This doctrine does not apply to continuance after the first trial.53 Nor to successive separate offenses such as the cutting of different mail bags.54 Nor to the mailing of several letters in execution of the same fraudulent scheme.55 The same act cannot be made the subject of separate punishments under the same statute, although it effects separate results; 56 thus, there cannot be two punishments under the same statute for the delivery of different money orders to the same person at the same time without receiving any money therefor; 57 but successive acts which produce different results although committed as part of the same transaction are not so inseparably connected that an acquittal of one will bar a conviction of another.58 Such is the murder of several persons in the same fray.59 A conviction of an offense, which necessarily includes certain acts charged, is a bar to a subsequent indictment for any of such acts alone.60 For example, a conviction of the crime of unlawful cohabitation which bars an indictment for adultery.61 It has been held that a conviction by a court martial of deser : tion is a bar to a prosecution in a District Court for failing to answer the written questions under the Selective Service Act,62 and that there cannot be two punishments for the fake answers to repetitions of the same question.63 But it seems that an acquittal of an offense is no bar to an indictment for a lesser crime based upon the same facts for which there could have been no conviction upon the former trial.64 A plea of former jeopardy, whether a former acquittal, or a former conviction, or otherwise, should be set up by a special plea in bar.65 Such a plea should set forth the record of the former acquittal, or conviction, or proceedings, which put the defendant previously in jeopardy.66 This plea may be joined with a plea of not guilty since the two pleas are not repugnant.67 A sworn statement by the defendant setting forth facts which, if true, constitute a former acquittal may be treated as such a plea. So may be a motion to discharge the defendant based upon former proceedings in the same cause.68 In such a case, no issue need be joined on the plea.69 62 U. S. v. Block, 262 Fed. 205. 63 Ulmer v. U. S., C. C. A., 219 Fed. 641. 64 Re Neilson, 131 U. S. 176. 65 U. S. v. Moller, 16 Blatchf. 65, Fed. Cas. No. 15,794. 66 Vaux's Case, Coke 44a; Reg. v. Connell, 6 Cox, C. C. 178; Rex v. Emden, 9 East 437; Rex v. Vandercom, 2 East, P. C. 519, 2 Leach, C. C. 816; Rex v. Wildey, 1 M. & S. 183; 1 Chitty, Criminal Law, 459; 2 Hale, P. C. 241, 243, 255; 2 Hawkins, P. C., c. 35, §2; Smith v. State, 52 Ala. 407; Foster v. State, 39 Ala. 229; Henry v. State, 33 Ala. 389; Harp v. State, 59 Ark. 113, 26 S. W. 714; Evans v. State, 54 Ark. 227, 15 S. W. 360; Bradley v. State, 32 Ark. 722; Territory v. King, 6 Dak. 131, 50 N. W. 623; Blair v. State, 81 Ga. 628, 7 S. E. 855; Daniels v. State, 78 Ga. 98, 6 Am. St. Rep. 238; Evans v. State, 68 Ga. 826; Crocker v. State, 47 Ga. 568; Hensley v. State, 107 Ind. 587, 8 N. E. 692; Davis v. State, 51 Neb. 301, 70 N. W. 984; State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27; People v. Smith, 172 N. Y. 210, 64 N. E. 814; Zachary v. State, 7 Baxt. (Tenn.) 1; Ford v. State (Tex. Cr. App. 1900), 56 S. W. 918; Wheelock v. State (Tex. Cr. App. 1896), 38 S. W. 182; Washington v. State, 35 Tex. Cr. 156, 32 S. W. 694; Grisham v. State, 19 Tex. App. 504; Williams v. State, 13 Tex. App. 285, 46 Am. Rep. 237; State v. Cross, 44 W. Va. 315, 29 S. E. 527; 12 Cyc. 364, 365. See U. S. v. Olsen, 57 Fed. 579; Berkowitz v. U. S., C. C. A., 93 Fed. 452, 35 C. C. A. 379. 67 Thompson v. U. S., 155 U. S. 271, 39 L. ed. 146. 68 Peters v. U. S., C. C. A., 94 Fed. 127. 69 Ibid. An objection to the manner of the trial cannot be considered upon the writ of error unless an exception thereto was duly taken.70 Parol evidence is admissable to supplement the previous record and establish the defense of previous conviction or acquit tal.71 Where the evidence in support of a plea of former jeopardy is wholly documentary, uncontradicted, and insufficient in law. to sustain the plea, the court may instruct the jury to return a verdict thereupon.72 § 520a. Pleas of Statutes of Limitations. Advantage may be taken of the Statutes of Limitations under the plea of not guilty.1 This is the only method by which the accused may raise the objection in the case of indictment for a conspiracy which is alleged to have continued until the time when the indictment is found. In most, if not in all, other cases the defense may be set up by a plea. This is a plea in bar, not a plea in abatement. A decision thereof, in favor of the defendant, may be reviewed by writ of error. The expediency of such a defense by plea requires careful consideration by the practitioner in each particular case. If the question is doubtful or the decision requires the examination of many authorities, he is more likely to succeed in the court of first instance, if he raises the question by plea which gives the court an opportunity for research, and deliberation before the decision. On the other hand, if the question is raised for the first time upon the trial and he then succeeds, the decision is final and cannot be reversed. It is doubtful whether the State of Limitations can ever be raised by demurrer. It cannot be, if the statute contains ex 70 Ibid. 71 Dunbar v. U. S., 156 U. S. 185, 191, 15 Sup. Ct. 325, 39 L. ed. 390; Dunbar v. U. S., 161 U. S. 314, 16 Sup. Ct. 508, 40 L. ed. 709; Foerster v. U. S., C. C. A., 116 Fed. 862. 72 Storm v. Territory of Arizona, C. C. A., 170 Fed. 423. § 520a. 1 U. S. v. Cook, 17 Wal lace 168, 179, 21 L. ed. 538. 2 U. S. v. Kissel, 218 U. S. 601, Fed. Prac. Vol. III-37 54 L. ed. 1168; U. S. v. Barber, 219 U. S. 72, 55 L. ed. 99. 3 U. S. v. Cook, 17 Wallace 168, 179, 21 L. ed. 538; Gompers v. U. S., 233 U. S. 604, 607; U. S. v. J. L. Hopkins & Co., 228 Fed. 173. 4 U. S. v. Oppenheimer, 242 U. S. 85. 5 Ibid. 6 U. S. v. Cook, 17 Wallace 168, 179, 21 L. ed. 538. "Accused per ceptions, or provisos.7 It is the safer practice when such a plea is overruled to except specifically thereto.8 The Statutes of Limitations to crimes against the United States are previously set forth.9 § 520b. Plea of guilty. The plea of guilty is a waiver of the right of trial by jury. It is not forbidden by the Sixth Amendment to the Constitution.2 It may be filed to an indictment for murder or other capital crime.3 It is an admission of every allegation of fact in the indictment or information. It is a waiver of all formal defects, and imperfect averments in the information or indictment.5 It is no waiver of the right to object that the indictment does not charge a crime created by a statute of the United States; nor of the right to have this question considered by a motion in arrest of judgment,7 or by a writ of error.8 sons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears upon its face that it was found within the period prescribed in the limitations, as such a proceeding would deprive the prosecutor of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception. Nor is it admitted that any different rule would apply in the case even if the statute of limitations did not contain any exception, as time is not of the essence of the offence; and also for the reason that the effect of the demurrer, if sustained, would be to preclude the prosecutor from giving evidence, as he would have a right to do, under the general issue, to show that the offence was committed within two years next before the indictment was found and filed." 7 Ibid; Green v. U. S., C. C. A., 154 Fed. 401; certiorari denied, 207 U. S. 597. 8 Gompers v. U S., 233 U. S. 604, 607. 9 Supra, § 180n. § 520b. 1 West v. Gammon, C. C. A., 98 Fed. 426. 2 Ibid. See Hallinger v. Davis, 146 U. S. 318, 13 Sup. Ct. 105, 36 L. ed. 986. 3 Hallinger v. Davis, 146 U. S. 318, 13 Sup. Ct. 105, 36 L. ed. 986; State v. Almy, 67 Ñ. H. 274, 28 Atl. 372. 4 West v. Gammon, C. C. A., 98 Fed. 426. 5 U. S. v. Bayaud, 16 Fed. 376. 6 Becker v. U. S., C. C. A., 268 Fed. 195; U. S. v. Potter, 6 McLean 186, Fed. Cas. No. 16,078; see U. S. v. Bayaud, 16 Fed. 376. 7 U. S. v. Potter, 6 McLean 186, Fed. Cas No. 16,078; see U. S. v. Bayaud, 16 Fed. 376; see infra, § 531. 8 Fletcher v. State, 12 Ark. 169; Commonwealth V. Kennedy, 131 Mass. 584; Boody v. People, 43 § 520c. Plea of not guilty. The plea of not guilty may be interposed to the whole of an indictment or information, or to any count therein. This plea puts in issue every allegation in the count or indictment to which it is made and puts upon the government the burden of proving every essential element of the offense charged. It is a waiver of the objection of duplicity and of any other objections of form.4 3 § 521. Proceedings upon pleas. The sufficiency of a plea in point of law can be raised by a demurrer, interposed by the prosecution. This for the purposes of the argument admits the truth of the allegations of the plea.2 The facts alleged in the plea may be traversed by an answer 3 or replication on the part of the prosecution. The defendant may test the sufficiency of either of these by a demurrer.5 If he wishes to raise an issue of fact, he should file a replication or other appropriate pleading to the answer or reply.6 Upon a demurrer to a plea the allegations of the plea are admitted. A demurrer to a replication will be overruled if the plea is bad.8 A plea of confession and avoidance is a waiver by the defendant of the requirement of proof beyond a reasonable doubt.9 Where the defendant's attorney, in his presence, claimed the opening and affirmative of an issue upon a plea in bar, it was held that the legal presumption of innocence did not apply.10 A Mich. 34, 4 N. W. 549; State v. § 520c. 1 Prettyman v. U. S., C. C. A., 180 Fed. 30. 2 Prettyman v. U. S., C. G. A., 180 Fed. 30, 42. 3 Pooler v. U. S., C. C. A., 127 Fed. 509, 515; supra, § 500. 4 U. S. R. S., § 954. § 521. 1 Moore v. Mississippi, 21 Wall. 636, 22 L. ed. 653; U. S. v. Norton, 91 U. S. 566, 23 L. ed. 454. 2 Ibid. See supra, § 366. 3 Burton v. U. S., 202 U. S. 344, 379, 26 Sup. Ct. 688. 4 State v. Malia, 79 Me. 540, 11 Atl. 602; Commonwealth v. Dockham, Thach. Cr. Cas. (Mass.) 238; Lewis v. State, 1 Head (Tenn.) 329; Baker v. State, 80 Wis. 416, 50 N. W. 518; Martin v. State, 79 Wis. 165, 48 N. W. 119, 12 Cyc. 360. 5 Burton v. U. S., 202 U. S. 344, 379, 26 Sup. Ct. 688, 50 L. ed. 1057. 6 Ibid. 7 Moore v. Mississippi, 21 Wall. 636, 22 L. ed. 653; U. S. v. Norton, 91 U. S. 566, 23 L. ed. 454. 8 U. S. v. Lawrence, 13 Blatchf. 295, supra, § 518. 9 U. S. v. Heike, 175 Fed. 852. 10 Ibid. |