2. When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four.

See People v. Bradner, 107 N. Y. 1; People v. Petrea, 92 id. 145; 30 Hun, 98, 101; 64 How. Pr. 139.

A defendant in moving to set aside an indictment is not confined to the grounds specified in this section. People v. Clements, 5 N. Y. Cr. Rep. 288; People v. Price, 6 id. 141, 145, note. Contra, People v. Equitable Gas-light Co., 6 N. Y. Cr. Rep. 189.

The provisions of this section have reference only to motions based on the grounds therein stated, and require the motions based on those grounds be made before pleading to the indictment. People v. Clements, 5 N. Y. Cr. Rep. 288. A defendant cannot compel the exhibition to himself or his counsel, of the minutes of the grand jury, or the testimony of the people's witnesses before it, for any other purpose than to enable him to set aside the indictment on the grounds specified in this section. People v. Richmond, 5 N. Y. Cr. Rep. 97.

§ 314. Defendant, when precluded from objecting to indictment in any other manner. -If the motion to set aside the indictment be not made, the defendant is precluded. from afterward taking the objections mentioned in the last section.

315. Motion, when heard. The motion to set aside an indictment must be heard at the time of the arraignment, unless, for good cause, the court postpone the hearing to another time.

A motion to set aside an indictment cannot be made until the defendant is arraigned thereupon. People v. Gas-light Co., 6 N. Y. Cr. Rep. 189.

316. If denied, defendant must immediately demur or plead. If the motion be denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto.

317. If granted, defendant discharged, unless the case be submitted to the same or another grand jury.If the motion be granted, the court must order that the defendant, if in custody, be discharged therefrom, or if under bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him, unless the court direct that the case be re-submitted to the same or another grand jury. See People v. Clements, 5 N. Y. Cr. Rep. 289, 297.

8318. Effect of order for re-submission. - If the court direct that the case be re-submitted, the defendant, if already in custody, must 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 is answerable for the appearance of the defendant to answer a new indictment.

See People v. Clements, 5 N. Y. Cr. Rep. 299; People v. Price, 6 id. 145.

§ 319. When new Indictment not found. Unless a new indictment be found, before the next grand jury of the county or city is discharged, the court must, on the discharge of such grand jury, make the order prescribed by section three hundred and

seventeen.

§ 320. Order to set aside indictment no bar to another prosecution. An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offense.

CHAPTER VI.

DEMURRER.

SECTION 321. Only pleading for defendant, is demurrer or plea.

322. Demurrer or plea, when put in.

323. Grounds of demurrer.

324. Demurrer, how put in, and its form.

325. When heard.

326. Judgment on demurrer.

327. If allowed, judgment a bar to another prosecution, unless direction that the case be re-submitted to the same or another grand jury.

328. If re-submission not ordered, defendant discharged.

329. Proceedings, if re-submission ordered.

330. If demurrer disallowed, defendant may be permitted to plead; when he must do so, and effect of his omission.

331. When objections, forming ground of demurrer, may be taken at the trial, or in arrest of judgment.

§ 321. Only pleading for defendant, is demurrer or plea. The only pleading on the part of the defendant is either a demurrer or a plea.

See 1 Bish. Crim. Proc., § 775; People v. Petrea, 92 N. Y. 128; People v. Conway, 97 id. 63, 70; People v. Bradner, 107 id. 9.

$322. Demurrer or plea, when put in.- Both the demurrer and the plea must be put in, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose.

See 1 Bish. Crim. Proc., § 775.

323. Grounds of demurrer.- The defendant may demur to the indictment, when it appears upon the face thereof:

1. That the grand jury, by which it was found, had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the county; or

2. That the indictment does not conform substantially to the requirements of sections two hundred and seventy-five and two hundred and seventy-six; or

3. That more than one crime is charged in the indictment. within the meaning of sections two hundred and seventy-eight or two hundred and seventy-nine; or

4. That the facts stated do not constitute a crime; or

5. That the indictment contains matter, which, if true, would constitute a legal justification or excuse for the acts charged, or other legal bar to the prosecution.

See People v. Clements, 107 N. Y. 210; People v. Conway, 97 id. 63; 2 N. Y. Cr. Rep. 577; 20 Week. Dig. 244; People v. Richards, 44 Hun, 288; 5 N. Y. Cr. Rep. 370; People v. Carr, 3 id. 582; People v. Cooper, id. 119; People v. Wise, id. 304; People v. Cole, 2 id. 110; People v. Peck, id. 317; People v. Durrin, id. 334; People v. Upton, 38 Hun, 107; 4 N. Y. Cr. Rep. 455; People v. Menken, 36 Hun, 99; 3 N. Y. Cr. Rep. 233; People v. O'Donnell, 46 Hun, 360.

§324. Demurrer, how put in, and its form.-The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it may be disregarded.

See People v. McCarthy, 110 N. Y. 314.

§325. When heard. — Upon the demurrer being filed, the objections presented thereby must be heard at such time as the court may appoint.

326. Judgment on demurrer. The court must give judgment upon the demurrer, either allowing or disallowing it; and an order to that effect must be entered upon the minutes. See People v. Cooper, 3 N. Y. Cr. Rep, 119.

§ 327. If allowed, judgment a bar to another prosecu tion, unless direction that the case be re-submitted to the same or another grand jury. -- If the demurrer be allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, 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.

See People v. Richards, 44 Hun, 288; 5 N. Y. Cr. Rep. 370; People v. Clements, id. 297.

§ 328. If re-submission not ordered, defendant discharged. If the court do not direct the case to be re-submitted the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.

See SS 317, 318, ante; People v. Petrea, 92 N. Y. 128, 144; People v. Clements, 5 N. Y. Cr. Rep. 297; People v. O'Donnell, 46 Hun, 362.

§ 329. Proceedings, if re-submission ordered. — If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections three hundred and eighteen and three hundred and nineteen. See People v. Petrea, 92 N. Y. 128, 145.

§ 330. If demurrer disallowed, defendant may be permitted to plead; when he must do so, and effect of his omission. If the demurrer be disallowed, the court must 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 must be pronounced against him, if the crime charged is a misdemeanor, otherwise a plea of "not guilty” mast be entered.

See § 342, post; People v. Persons, 2 N. Y. Cr. Rep. 114; People v. Cooper, 3 id. 119; People v. Crotty, 30 State Rep. 46.

331. When objections, forming ground of demurrer, may be taken at the trial or in arrest of judgment. The objections mentioned in section three hundred and twentythree can only be taken 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 crime, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.

See People v. McCarthy, 110 N. Y. 314; People v. Buddensieck, 103 id. 497; 5 N. Y. Cr. Rep. 71; 4 id. 230, 252; People v. Upton, 38 Hun, 110, 111; People v. Kelly, 31 id. 226; 2 N. Y. Cr. Rep. 18; People v. Osterhout, 34 Hun, 262; People v. Menken, 3 N. Y. Cr. Rep. 233; People v. Stevens, id. 582.

CHAPTER VII.

PLEA.

SECTION 332. The different kinds of pleas.

333. Plea, how put in.

334. Its form.

335. Plea of guilty, how put in.

336. Plea of insanity.

337. Plea may be withdrawn by permission of the court.

338. What is denied by a plea of not guilty.

339. What may be given in evidence under it.

340, 341. What is deemed a former acquittal.

342. If defendant refuse to answer indictment, plea of not guilty to

be entered.

§ 332. The different kinds of pleas. There are three kinds of pleas to an indictment; a plea of (1) guilty, (2) not guilty, (3) a former judgment of conviction or acquittal of the crime charged, which may be pleaded either with or without the plea of guilty. But no conviction shall be had upon a plea of guilty in either of the following cases: (a) where the crime charged is or may be punishable by death, or (b) where the crime charged is or may be punishable by imprisonment in a state prison for the term. of life.

See People v. Cignarale, 110 N. Y. 29; People v. Petrea, 92 id. 128, 145; 30 Hun, 98, 101.

$333. Plea, how put in.- Every plea must be oral, and must be entered upon the minutes of the court.

See People v. Petrea, 30 Hun, 98, 101; People v. O'Neil, 47 Hun, 157; People v. Osterhout, 34 id. 262.

As to standing mute, see note to § 342, post.

334. Its form.-The plea must be entered in substantially the following form:

1. If the defendant plead guilty to the crime charged in the indictment, "the defendant pleads that he is guilty;"