such a motion. Where an improper person was present before the grand jury during their proceedings, the indictment may be quashed upon motion."

Under extraordinary circumstances a motion to quash may be made because there was not competent or legal evidence before the grand jury to warrant an indictment or because the defendant's constitutional rights were infringed in the proceedings, by the use of papers obtained by search warrant of the nature forbidden by the Fourth Amendment or an unlawful seizure,10 by compelling the accused to testify against himself,11 or otherwise. In one case an indictment was quashed because of the admission of incompetent evidence before the grand jury although it seems that there was sufficient other evidence before the jurors to justify the indictment.12 This is in conflict with the weight of authority.18 The use before the grand jury of papers seized under a valid search warrant is no ground for quashing the indictment.14 A motion to quash is not the proper remedy to raise the objection that an indictment contains three counts, charging the same offense.15 This objection should be made by a motion to compel an election.16 Defendant cannot ordinarily thus object to such irregularities in the selection,17 or summons,18 of the grand jury, as have not prejudiced him. The courts have refused to quash indictments, where one or more of the grand jurors were not qualified, 19 but an indictment was

7 U. S. v. Edgerton, 80 Fed. 374; U. S. v. Rosenthal, 121 Fed. 862; U. S. v. Virginia-Carolina Chemical Co., 163 Fed. 66. U. S. v. Heinze, 177 Fed, 770. Cf. U. S. v. Merchants' & Miners' Transp. Co., 187 Fed. 355; May v. U. S., C. C. A., 236 Fed. 495.

8 Cooper v. U. S., C. C. A., 247 Fed. 45; U. S. v. Perlman, 247 Fed. 158; U. S. v. Silverthorne, 265 Fed. 853.

9 U. S. v. Silverthorne, 265 Fed. 853.

10 Ibid.; supra, § 487.

11 Supra, § 487.

12 U. S. v. Ruben, 218 Fed. 245. 13 U. S. v. Perlman, 247 Fed. 158; U. S. v. Silverthorne, 265 Fed. 853.

14 Cooper v. U. S., C. C. A., 247 Fed. 45; U. S. v. Gouled, 253 Fed. 242.

15 Wetzel v. U. S., C. C. A., 233 Fed. 984.

16 Ibid. See supra, § 503.

17 Agnew v. U. S., 165 U. S. 36, 44. 41 L. ed. 624, 627.

18 U. S. V. Tuska, 14 Blatchf. 5, Fed. Cas. No. 16,550.

19 U. S. v. Benson, 31 Fed. 896, 12 Sawyer, 477; U. S. v. Ewan, 40 Fed. 451.

quashed when the marshal was allowed to select the grand jury from a larger number of names than were drawn.20

A motion to quash an indictment unless upon its face it shows no punishable offense 21 should be made at least as early as the opening of the trial 22 and if delayed till then it may still be barred for laches.23 Objections to the selection or qualification of a grand jury, or the proceedings before it, must be taken at the earliest possible moment. Where there is a disputed question of fact concerning these matters, the proper remedy is usually a plea of abatement,25 not a motion to quash.26 It seems that objections, not apparent upon the face of the indictment, will not be considered unless they are specified as the grounds for the motion to quash.27

A motion to quash an indictment, except upon the ground that the indictment does not charge facts sufficient to constitute an offense, is addressed to the discretion of the court, and its denial will not be reviewed unless there has been such an abuse of discretion as to cause actual injustice.28 It cannot be reviewed in the absence of an exception taken to the ruling when made.29

20 U. S. v. Lewis, 192 Fed. 633. 21 Cohen v. U. S., C. C. A., 258 Fed. 355.

22 Cooper v. U. S., C. C. A., 247 Fed. 45.

23 Benson v. U. S., C. C. A., 240 Fed. 413; U. S. v. Gouled, 253 Fed. 242.

24 U. S. v. Agnew, 165 U. S. 36, 44, 41 L. ed. 624, 627; Lowden v. U. S., C. C. A., 149 Fed. 673; Mat. ters v. U. S., C. C. A., 244 Fed. 36. See infra, § 517. Where the accused was ready to file a motion to quash on the return day after the indictment, but the presiding judge, considering himself disqualified, would not permit the motion to be filed or accepted, nor accept a plea, and it was agreed that the motion might be filed without leave, to be subsequently obtained when another judge should preside; the motion was

deemed to have been filed in time when leave was granted when the other judge next presided. U. S. v. Lewis, 192 Fed. 633.

25 Infra, § 517.

26 Agnew v. U. S., 165 U. S. 36, 44, 41 L. ed. 624, 627.

27 Kitt v. State, 117 Ala. 213, 23 So. 485; People v. Colby, 54 Cal. 37; People v. Hunter, 54 Cal. 65; State v. Phillips, 119 Iowa, 652, 89 N. W. 1092, 94 N. W. 229, 67 L. R. A. 292; State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202; State v. Simas, 25 Nev. 432, 62 Pac. 242; Shivers v. Territory, 13 Okla. 466, 74 Pac. 899; Stanley v. U. S., 1 Okla. 336, 33 Pac. 1025, 22 Cyc. 420.

28 Carlisle v. U. S., C. C. A., 194 Fed. 827; Steigman v. U. S., C. C. A., 220 Fed. 63.

29 Carlisle v. U. S., C. C. A., 194 Fed. 827.

32

A motion to quash because the indictment states no criminal offense may be made at any time 30 even after verdict.31 When granted, it is equivalent to a decision sustaining a demurrer and may be reviewed by a writ of error taken by the government.3 A judgment granting a motion to quash, which has the effect of barring further prosecution of the offense charged under the same or any other indictment is equivalent to a judgment sustaining a special plea involved and may be similarly reviewed.83

§ 516. Demurrers to indictments. A demurrer to an indictment admits the allegations thereof to be true and sets up the defense that they do not properly charge a punishable offense.1 It has been said that a demurrer in the regular order precedes arraignment. The court has discretionary power to permit a plea to be withdrawn and a demurrer subsequently filed. A denial of the application will rarely, if ever, be reviewed by writ of error. Such a refusal is no abuse of discretion although the court has previously sustained a demurrer to a similar indictment against another when such former ruling has been reversed.5

6

Oral demurrers were permitted at common law; but it is the safer practice to file a demurrer in writing. Special demurrers are not usually recognized in the Federal courts; 7 but a paper filed as a special demurrer was sustained as an assignment of causes under the general demurrer.8

A demurrer may be filed to the whole of an indictment or to any count therein. If filed to one or more counts it may be joined with a plea to the others.10

3 Post v. U. S., 161 U. S. 583, 40 L. ed. 816; Phillips v. U. S., C. C. A.. 205 Fed. 259.

4 Collins v. U. S., C. C. A., 219 Fed. 670; Andrews v. U. S., C. C. A., 224 Fed. 418; see supra, § 514.

5 Collins v. U. S., C. C. A., 219 Fed. 670.

6 Swan's case, Foster, Cr., 104. 7 U. S. v. French; 57 Fed. 382. 8 U. S. v. French, 57 Fed. 382; U. S. v. Patterson, 59 Fed. 280, 281. 9 Prettyman v. U. S., 180 Fed. 30.

10 Ibid.

Objections to the form of the indictment, or to part thereof, must be specifically stated in the demurrer. Such is the objection of duplicity.11

An objection to an indictment charging a conspiracy, because it does not properly charge overt acts to effect the objects of the same, does not challenge its sufficiency so far as it alleges the conspiracy.12 It seems that surplus allegations in an indictment cannot be attacked by a demurrer.13 Immateriality of testimony alleged to have been false cannot be raised by demurrer to an indictment for perjury unless such immateriality is clearly apparent.14 Upon a demurrer to an indictment for mailing an obscene book, although the book is stipulated into the record as part of the indictment, the court cannot decide that the act was not criminal unless the book is so clearly free from obnoxious matter that the jury could not be permitted to hold it to be obscene.15 No objections which do not appear upon the face of the indictment can be raised by demurrer.16

When the statute of limitations contains exceptions, advantage thereof cannot be taken by demurrer, unless the indictment shows on its face that the case does not fall within any of the exceptions.1? Where, however, it appeared on the face of the indictment that the statute of limitations barred the prosecution, it was held that the objection might be raised by a general demurrer.18 Where an indictment charged "John Doe, a Chinese person, whose true name is to the grand jurors aforesaid unknown," and showed on its face that the name John Doe was fictitious, and that the grand jurors could not identify the person whom they were indicting, a demurrer was sustained.19

"In every case in any court of the United States, where a demurrer is interposed to an indictment, or to any count or

14 U. S. v. Patterson, 59 Fed. 280. See supra, § 500.

12 Hedderly v. U. S., C. C. A., 193 Fed. 561.

13 U. S. v. Patterson, 59 Fed. 280. 14 U. S. v. Rosenstein, 211 Fed. 738.

15 U. S. v. Kennerley, 209 Fed. 119, disapproving Regina v. Hicklin, L. R., 3 Q. B. 36.

18 U. S. v. Peuschel, 116 Fed. 642.

17 U. S. v. Cook, 17 Wall. 168, 21 L. ed. 538.

18 U. S. v. Watkins, 3 Cranch, C. C. 441, Fed. Cas. No. 16,649; U. S. v. White, 5 Cranch, C. C. 368, Fed. Cas. 16,678..

19 U. S. v. Doe, 127 Fed. 982.

counts thereof, or to any information, and the demurrer is overruled, the judgment shall be respondeat ouster; and thereupon a trial may be ordered at the same term, or a continuance may be ordered, as justice may require." 20

An error in overruling a demurrer to the Government's evidence is waived, when the defendant subsequently offers evidence in his own behalf.21

§ 517. Pleas in abatement. A plea in abatement is the proper remedy for objections to the indictment, which do not appear upon the face thereof.1 A defect which appears on the face of the indictment cannot be raised by a plea in abatement.2 Certain objections, which may be raised by a plea in abatement, can also be interposed by a motion to quash the indictment.3 Where there is a disputed question of fact in such cases, the proper remedy is a plea in abatement.

It seems that a misnomer of the defendant in an indictment is the subject of a plea in abatement, and that it can only be raised in that manner. Such a plea must state the true name of the accused, and also that he was not commonly known and called by the name under which he was indicted."

20 U. S. R. S., § 1026. See Summers v. U. S., 251 U. S. 92, 99.

21 Collins v. U. S., 219 Fed. 670. § 517. 1 Agnew v. U. S., 165 U. S. 36, 44, 17 Sup. Ct. 235, 41 L. ed. 624; supra, $516.

2 U. S. v. J. L. Hopkins & Co., 199 Fed. 649.

3 Agnew v. U. S., 165 U. S. 36, 44, 17 Sup. Ct. 235, 41 L. ed. 624; supra, 515.

4 U. S. v. Gale, 109 U. S. 65, S. Ct. 1, 27 L. ed. 857; Agnew v. U. S., 165 U. S. 36, 44, 17 S. Ct. 235, 41 L. ed. 624.

5 Rex v. Shakespeare, 10 East, 83, 2 Hale, P. C. 237; Washington v. State, 68 Ala. 85; Daniels v. State, 60 Ala. 56; Lawrence v. State, 59 Ala. 61; Miller v. State, 54 Ala. 155; Gabe v. State, 6 Ark. 519; Davids v. People, 192 Ill. 176, 61 N. E. 537; Gardner v. State, 4 Ind. 632;

State v. Knowlton, 70 Me. 200; Commonwealth v. Fredericks, 119 Mass. 199; Commonwealth v. Dedham, 16 Mass. 141; State v. Narcarm, 69 N. H. 237, 45 Atl. 744; Commonwealth v. Demain, Brightly, 441, 3 Pa. L. J. Rep. 487, 6 Pa. L. J. 29; State v. Lorey (South Carolina), 2 Brev. 395; State v. Brunell, 29 Wis. 435; 12 Cyc. 359.

6 Ex parte Corrigan, 2 Can. Cr. Cas. 591; Dutton v. State, 92 Ga. 14, 18 S. E. 545; Davids v. People, 192 Ill. 176, 61 N. E. 537; State v. Winstrand, 37 Iowa, 110; State v. Burns, 8 Nev. 251; People v. Smith (New York), 1 Park. Cr. 329; State v. Farr (South Carolina), 12 Rich. 24; State v. Montague (South Carolina), 2 McCord, 257; 12 Cyc. 359, 360.

7 U. S. v. Janes, 74 Fed. 543; Ruffin v. State, 124 Ala. 91, 27 So.