After a second indictment for the same matter charged in the first indictment, the defendant may waive his right to have the first indictment quashed by pleading guilty under it.1

A motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception, and . the motion will be granted where the insufficiency is clear.2

Courts will not entertain a motion to quash the indictment or erase it from the docket except for defects appearing upon the face of the proceedings.3

Such a motion should not be allowed to prevail in a doubtful case, but only where the insufficiency of the indictment is so palpable as clearly to satisfy the presiding judge that a verdict thereon would not authorize a judgment against the defendant. It is due to the State and to the rights of the citizen, to have the facts inquired into by a jury, and if the facts charged be affirmed by their verdict, the defendant can have the same advantage of legal points upon a motion in arrest as upon a motion to quash.4

And the defect in general must be very gross and apparent to induce the court to dismiss the indictment in this summary way, instead of leaving the party to the more usual remedies of demurring or moving in arrest of judgment.

When the court in which the indictment was found, had no jurisdiction, the indictment will be quashed. So, also, where the indictment charged an offence in August in the county of W, and the law creating the county of W did not pass until the November following, the indictment was quashed.7

Where the offences are public in their consequences, and seriously affecting the rights and interests of large classes of the community, the courts have refushed to quash the indictment, although in some cases it was said to be defective.

Thus the court refused to quash an indictment against a num

1 Peo. v. Barry, 4 Park., 657; 10 Abb., 225.

* Com. v. Eastman, 1 Cush., 189; Vol. 1, Arch. Cr. Pr., § 102; Peo. v. Eckford, 7 Cow., 535.

• Wickwire v. The State, 19 Conn., 477; 1 Pa., State R., 105.

• Com. v. Eastman, 1 Cush., 189; 8 Halst., 299; 4 Yeates, 69; State v. Smith,

1 Murphy, 213.

2 Hawk. C., 25, § 146, notes; Cro. Car., 147; Fost., 104; 1 Blac. Rep., 275; Dougl.. 240, 241,

13 Smed. & Marsh, 189.

"State v. Jones, 3 Halst., 307.

ber of persons for breaking and entering a lead mine, though it was defective, because there were large numbers of persons met together and the judges were trying others in the same county for similar offences.1 So, also, the court will refuse to quash an indictment for a nuisance without a certificate that it is removed.2 So, also, they have refused to quash an indictment against a parish for not repairing a highway on an affidavit that the way was not in repair. So, also, have they refused to quash an indictment against overseers for not paying money over to their successors, for it was said this was a growing evil, and affecting the interests of the community; other cases are also cited.

4

Where offences, though private in their nature, are public in their consequences, in which the courts have refused to quash as indictments for forcible or fraudulent entries,5 for disturbances in church, or against a bankrupt for embezzling his effects," or for enticing away a servant.

8

In a late case in this State, the general rule was laid down as follows: The court will not ordinarily quash an indictment after the defendants have been arraigned and pleaded not guilty. In cases of indictments which charge the higher crimes or other offences which affect the public at large as perjury, forgery, &c., the courts uniformly refuse to quash, except where the objection could not be obviated or the error corrected by a new indictment. The court is in no case bound to quash an indictment ex debitio justitiae, but may oblige the defendant to plead or demur."

It is provided by statute that no indictment shall be deemed invalid.

1. By reason of having omitted the addition of the defendant's title, occupation, estate or degree, or by reason of the mis-statement of any such matter, or of the town or county of his residence, where the defendant shall not be misled or prejudiced by such statement; or,

1 1 Wils., 325; Com. Dig. Indict., 1 H.; Bac. Abr. Indict. K.

* 4 Burr., 2116; 1 Salk., 372; Cro. Car. 584; 2 Ld. Raym., 1164; Andr., 139, 220; 1 Vent., 370; Bac. Abr. Indict. K.; 1 Barnard K. B., 45.

2 Stra., 1268; Bac. Abr. Indict. K.; Com. Dig. Indict., H.

* 6 Mod., 96.

' 1 Leach, 10; 3 J. B. Moore, 656.

• Cro. Car., 584; 1 Sid., 54.

1 Salk, 372; Com. Dig. Indict., H; see also 6 Mod., 42; 3 Burr, 1841.

• Peo. v. Walters, 5 Park., 661. Vide Peo. v. Strong, 1 Abb. Pr., N. S., 244.

2. By the omission of the words, "With force and arms," or any words of similar import; or,

3. By reason of omitting to charge any offence to have been committed contrary to any statute, or contrary to several statutes, notwithstanding such offence may have been created, or the punishment thereof, may have been declared by any statute; or, 4. By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.1

§ 31. MOTION TO QUASH BY THE PROSECUTOR.

When the application is made by the prosecutor the court will not quash the indictment as a matter of course, unless it appear to be clearly insufficient; 2 nor even then, after the defendant has pleaded, unless another good indictment has been found against him;3 nor where he has been put to extra expense unless the costs are first paid him. But where the indictment is insufficient, and the defendant is not put to inconvenience, the court will quash it upon the motion of prosecutor without the consent of the defendant.5

The application, on the part of prosecutor, may be made at any time before the indictment has been tried."

It is a good ground for granting the motion to quash, that the facts stated in the indictment did not amount to an offence punishable by law."

Under the English practice it is said that, where the prosecu tion is by the attorney general, an application to quash the indictment is never made, because he may enter a nolle prosequi, which will have the same effect; and, as our district attorneys have the same power, the entry of a nolle prosequi is generally resorted to by the prosecution here instead of a motion to quash; and in England, before an application upon the part of the pros

1 2 R. S., 728, § 54.

'Dougl., 240; Com. Dig. Indict., H.

1 Leach, 11; 6 Mod., 262; 2 East. R., 226.

3 Burr, 1469; 2 Stra., 946; Stark, 282; Com. Dig. Indict., H; Bac. Abr. Indict., K.

5

3 Burr, 1468; 1 Blac. Rep., 460; Com. Dig. Indict., H; Bac. Abr. Indict., K; 1 Arch. Cr. Pr., § 102, notes.

1 Burr, 651; Mott Dig., 284.

R. v. Philpot, 1 C. & K., 47 E. C. L., 112; 1 Burr, 516; Andr., 230.

R. v. Stratton, 1 Doug., 239, 240; R. v. Bumby, 48 E. C. L. R., 348.

ecution to quash is granted, a new bill for the same offence must have been preferred against the defendant and found.1

§ 32. MOTION TO QUASH BY THE DEFENDANT.

When the motion is made on the part of the defendant, the rules by which the court are guided are more strict, and their objections are more numerous, because, if the indictment is quashed the recognizance will become ineffectual; and courts usually refuse to quash on the application of the defendant, when the indictment is for a serious offence, unless upon the clearest and plainest ground, but will drive the party to a demurrer or motion in arrest of judgment or writ of error.3

It is therefore said to be a general rule that no indictments which charge the higher offences, as treason or felony, or those crimes which immediately affect the public at large, as perjury, forgery, extortion, conspiracies, subornation, keeping disorderly houses, or offences affecting highways or not executing legal process, will be thus summarily set aside.1

The application, if made by the defendant, should be before plea pleaded. Thus, after the defendant has plead not guilty, no motion will lie to quash the indictment. And the court will overrule a motion to quash after a nolle prosequi has been entered."

So, also, if the defendant did not duly appear, or has forfeited his recognizance, his application to quash the indictment will be ineffectual.8

The quashing an indictment as to one of several defendants, has the effect of quashing it as to all."

1

1 R. v. Wynn, 2 East., 226.

2 Sess. Cas., 1.

' Cald., 432-554; Nolan P. S., 261; 1 Arch. Cr. Pr., § 102, note; Com. Dig. Indict. H.; R. v. Johnson, 1 Wils., 325; 1 Salk., 372; R. v. Thomas, 3 D. & R., 621.

4

Arch. Cr. Pr., vol. 1, § 102, note; 1 Salk., 372; Com. Dig. Indict. H.; 5 Mod., 13; 2 Sess. Cas., 1-2-4-8; 1 Id., 337-339; 2 Stra., 1210; 2 Hawk., ch. 25, § 146; Burns, J., Perjury, III; Williams, J., Perjury, II; Bill v. Com., 8 Grat., 600.

Fost., 231; Holt, 684; 4 St. Tr., 677.

Peo. v. Monroe, 20 Wend., 108; 7 Blackf., 324-186; 3 Shepley, 104; 13 Sme. & Marsh, 468.

'U. S. v. Hill, 1 Brook, 156.

8 1 Salk., 380; 1 Barnard, K. B., 44.

State v. Smith; Peo. v. Eckhart, 7 Cow., 535; 1 Murphy, 213. Contra, Coats v. Peo., 5 Park., 662.

After the indictment against the defendant has been quashed, a new and more regular one may be preferred against him. He can gain, therefore, very little advantage, except delay, by such an application, and therefore usually reserves his objection until after the verdict, when, if the indictment be found to be insufficient, the court are bound ex debito justitiæ to arrest the judgment.1

CHITTY states the rule to be that if the application is made on behalf of the defendant, the court will not grant it unless the defect is very clear and obvious, but will leave him to take objection in some other form.2

§ 33. NOLLE PROSEQUI.

A nolle prosequi is defined as "A proceeding on an indictment by which the prosecuting officer argrees to prosecute no further, either as to the whole of the indictment, or as to some particular part of it."3

It is provided by statute that it shall not be lawful for any district attorney to enter a nolle prosequi upon any indictment, or in any other way to discontinue or abandon the same without the leave of the court having jurisdiction to try the offence charged entered in the minutes.4

The court has no power to order the entry of a nolle prosequi upon an indictment. The power at common law could only be exercised by the attorney general, and there is no statute in this State depriving him of it; but a district attorney cannot enter a nolle prosequi without leave from the proper court.5

A nolle prosequi in criminal proceedings does not amount to an acquittal of the defendant; but he may again be prosecuted for the same offence, or fresh process may be issued to try him on the same indictment, at the discretion of the prosecuting officer. The defendant, however, when a nolle prosequi is entered, need not enter into recognizance for his appearance at any other time.

1 2 Burr., 1127.

1 Chit. Cr. L., 299.

• Burril's Law Dict., tit. nolle prosequi.

4 2 R. S., 728, § 56.

Peo. v. McLeod, 1 Hill, 377; see 25 Wend., 572; 1 Chit. Cr. L., 478; 1 Ld Raymond, 721; 2 Mass. R., 414.

⚫ State v. Thornton, 13 Iredell, 256; Com. v. Wheeler, 2 Mass., 172.

Idem; 13 Iredell, 256.