submission to a jury of the issue raised upon a plea cures a previous error by the court in overruling the plea.11

When a special plea is overruled, the defendant may be allowed to plead to the merits.12 This is usually done when the plea is not a confession of guilt.

§ 522. Bills of particulars. Where an indictment is sufficiently definite to be sustained upon demurrer, but does not give the defendant the information to which he is fairly entitled in order properly to prepare for trial, he should be given a bill of particulars of the facts therein charged.1

A bill of particulars is no part of the indictment, and does not supply any defects or omissions therein. After the service of a bill of particulars the prosecutor is confined to its contents as closely as if they were a part of the indictment. A bill of particulars may be ordered: when the indictment charges the mailing of indecent and obscene literature, without quoting the objectionable language, or a conspiracy to accomplish an unlawful purpose by public speeches, or an offense against the internal revenue laws, without specifying the alcoholic liquor to which it refers; 7 or to require a statement of the time of a threat, its place within a specified city, the circumstances under which, and the person to whom it was made, or in order to show upon what statutes the indictment is based.9

A bill of particulars was denied when asked to show the exact date of solicitations and the precise language used and the names of all the persons solicited when the indictment stated the city where the solicitations were made, and that the particular places within such city and the names of the persons solicited were

11 Jones v. U. S., C. C. A., 179 Fed. 584.

12 Heike v. U. S., 217 U. S. 423, 54 L. ed. 821.

§ 522. 1U. S. v. Thompson, 189 Fed. 838; May v. U. S., C. C. A., 199 Fed. 53.

2 U. S. v. Comyns, 248 U. S. 349. 3 U. S. v. Adams Express Co., 119 Fed. 240.

4 U. S. v. Pierce, 245 Fed. 888; U. S. v. Gouled, 253 Fed. 239.

5 Rosen v. U. S., 161 U. S. 29, 40

L. ed. 606; Price v. U. S., 165 U. S. 311; Dunlop v. U. S., 165 U. S. 486, 41 L ed. 799.

6 U. S. v. Eastman, 252 Fed. 232. 7 U. S. v. Thompson, 189 Fed. 838. 8 U. S. v. Stobo, 251 Fed. 689, 694, 695.

9 Morris v. U. S., C. C. A., 161 Fed. 672, 681, 88 C. C. A., 532, 541; May v. U. S., C. C. A., 199 Fed. 53, 61; Vedin v. U. S., C. A. A., 257 Fed. 550.

to the grand jurors unknown; 10 and to specify the contracts with the government in connection with which a conspiracy was formed to defraud the United States.11

A bill of particulars cannot cure a defect in an indictment; 12 nor can it make an indictment, which is good upon its face, demurrable.13 Where a bill of particulars confines the prosecution to certain counts an error in refusing to quash the other counts is immaterial.14

The grant of a bill of particulars lies within the discretion of the court.15

A judgment will not be reversed for a refusal to direct the service of a bill of particulars, unless the substantial rights of the accused have been thereby prejudiced.16

§ 522a. Nolle prosequi. The Attorney General has the right to abandon the prosecution by the entry of a nolle prosequi at any time before judgment.1 He may do this before a jury is empanelled, while the case is before a jury, and after verdict.2

10 U. S. v. Pierce, 245 Fed. 888, 890.

11 U. S. v. Rosenwasser Bros., 255 Fed. 233.

12 U. S. v. Comyns, 248 U. S. 349; May v. U. S., C. C. A., 199 Fed. 53, 61; U. S. v. Rintelen, 233 Fed. 793.

13 Dunlap v. U. S., 165 U. S. 486; 41 L. ed. 799; Coomer v. U. S., C. C. A., 213 Fed. 1.

14 MacDonald v. U. S., 63 Fed. 426; Krause v. U. S., C. C. A., 267 Fed. 183.

15 Dunlap v. U. S., 165 U. S. 486, 41 L. ed. 799; Breese v. U. S., 106 Fed. 680; Hedderly v. U. S., C. C. 1, 193 Fed. 561; Knauer v. U. S., C. C. A., 237 Fed. 8; U. S. v. Pierce, 245 Fed. 888.

16 Dunlap v. U. S., 165 U. S. 486, 41 L. ed. 799; Hedderly v. U. S., C. C. A., 193 Fed. 561; Knauer v. U. S., C. C. A., 237 Fed. 8; Foster v. U. S., C. C. A., 253 Fed. 481; Collins v. U. S., C. C. A., 253 Fed.

609; Ciafirdini v. U. S., 266 Fed. 471; Moens v. U. S., C. C. A., 267 Fed. 317.

§ 522a. 1 Re Mitchell v. U. S., C. C. A., 197 Fed. 874; Re Cain, C. C. A., 209 Fed. 40.

2 Ibid. Commonwealth v. Tuck, 20 Pick. (Mass.) 356, 365; "After a verdict of guilty is rendered, the defendant is to be sentenced on motion of the attorney general; and we have no doubt of his authority to enter a nolle prosequi after verdict. It cannot operate to the injury of the defendant. If the indictment is sufficient this act of the Attorney General saves him from the sentence of the law. If it be insufficient, it can do him no harm, for no judgment could be rendered upon the indictment, and so it would not bar another indictment. This practice of entering a nolle prosequi after verdict has prevailed, without objection, for many years. The power is found to be highly useful,

He may do so after judgment of conviction has been reversed by the court of review and a mandate issued directing a new trial or the entry of new judgment. He may make the entry as to one or more of several counts in an indictment.5 He cannot enter a nolle prosequi as to part of a count so as to cure the objection of duplicity.

A nolle prosequi is not the equivalent of an acquittal. It leaves the prosecution in the same position as if no part of the count nolled had been inserted in the indictment.8

The Attorney General, in making the entry of nolle prosequi, usually acts through the United States District Attorney. According to the preponderance of authority, in the State court the entry of a nolle prosequi after the jury has been empanelled and sworn is the equivalent of an acquittal and a bar to a subsequent prosecution for the same cause.9

§ 522b. Compromises of prosecutions under the Internal Revenue Laws and Prohibition Law. By the Revised Statutes, "The Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may compromise any

if not necessary, to the due administration of criminal law. Many cases may occur in which its exercise would be very beneficial.

It may be discovered after verdict that the defendant, though convicted, is really innocent. It may become important to use him as a witness. The power to enter a nolle prosequi is held by the Attorney General virtute officii. He exerts it upon his official responsibility. The court has no right to interfere with its exercise. They can only judge of the effect of the act when done, and of the legal consequences which may follow from it. They will take care that it shall not operate to the prejudice of the defendant's rights."

3 Mitchell v. U. S., C. C. A, 197, 874.

4 Re Cain, 209 Fed. 40.

Dealy v. U. S., 152 U. S. 539, 541, 38 L. ed. 545.

6 U. S. v. Dembowski, 252 Fed. 894, 898.

7 Dealy v. U. S., 152 U. S. 539, 541, 38 L. ed. 545.

8 Ibid.

9 People v. Barrett, 2 Caines (N. Y.) 304; Commonwealth v. Tuck, 20 Pick. (Mass.); Mounts v. State, 14 Ohio 295; State v. Connor, 5 Cold. (Tenn.) 311; State v. Callendine, 8 Iowa 288; Baker v. State, 12 Ohio St. 214; Grogan v. State, 44 Ala. 9; State v. Alman, 64 N. C. 364; Nolan v. State, 55 Ga. 521; Pizaño v. State, 20 Tex. App. 139; Cooley's Constitutional Limitations, 6th ed. 399. Contra, State v. Champeau, 53 Vermont 613; s. c. 36 Am. Rep. 754; State v. Garvey, 42 Conn. 232. "If the prisoner does not claim a verdict, but waives his right to insist upon it."

civil or criminal case arising under the internal revenue laws instead of commencing suit thereon; and, with the advice and consent of the said Secretary and the recommendation of the Attorney General, he may compromise any such case after a suit thereon has been commenced."1

A compromise effected under this statute, whether before or after prosecution is as complete a discharge of the defendant as a verdict of acquittal by a jury. It may be offered in evidence upon the trial of a criminal prosecution founded upon the matter which has been the subject of the compromise.3

No formal release by the Commissioner or by the Government or by anyone on its behalf is essential. The acceptance and collection of a check to the order of the Commissioner for an amount paid in full settlement as orally agreed upon between the taxpayer and one of the former subordinates is sufficient.5

The statute contemplates that the advice and consent of the Secretary of Treasury and the recommendation of the Attorney General shall be obtained by the Commissioner of Internal Revenue before he makes a compromise. It is presumed that when the Commissioner accepts an offer of compromise, he has previously discharged his duty of communicating with the other officers.7

By the National Prohibition Law, "the commissioner with the approval of the Secretary of the Treasury may compromise any civil cause arising under this title before bringing action in court and with the approval of the Attorney General he may compromise any such cause after action has been commenced."' 8 will be observed that this gives no authority to the Commissioner of Internal Revenue to compromise a criminal prosecution.

It'

§ 522c. The right to confrontation. By the Sixth Amendment the accused has the right "to be confronted with the witnesses against him." This does not apply to proceedings before a

grand jury. The right of the accused to be confronted with the witnesses against him does not exclude the admission of dying declarations, in cases where they would be admissible at common law; 2 nor does it exclude the admission of competent evidence concerning previous testimony, by a witness, upon a former trial of the accused under a different indictment, when it appears that the absence of the witness has been wrongfully procured by the defendant; 3 nor, the reading in evidence of testi