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§ 361. If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in sections 350 and 351.

§ 362. If the demurrer be disallowed, the court shall permit the defendant, at his election, to plead; which he must do forthwith, or at such times as the court may allow. If he do not plead jndgment shall be pronounced against him.

§ 363. When the objections mentioned in section 355, appear upon the face of the indictment, they 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 public offence, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.

CHAPTER VI.

Plea.

§ 364. 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 offence charged: which may be pleaded either with or without the plea of not guilty.

§ 365. Every plea shall be oral, and shall be entered upon the minutes of the court.

§ 366. The plea shall be entered in substantially the following form:

1. If the defendant plead guilty:—“The defendant pleads that he is guilty of the offence charged in this indictment."

2. If he plead not guily :-“ The defendant pleads that he is not guilty of the offence charged in this indictment.”

3. If he plead a former conviction or acquittal: “The defendant pleads that he has already been convicted (or acquitted, as the case may be,] of the offence charged in this indictment, by the judgment of the court of [naming itrendered at — [naming the place, on the -day of— .”

§ 367. A plea of guilty can in no case be put in, except by the defendant himself in open court, unless upon an indictment against a corporation; in which case, it may be put in by counsel.

§ 368. The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.

§ 369. The plea of not guilty shall be deemed a denial of every material allegation in the indictment.

$ 70. All matters of fact, tending to establish a defence, other than that specified in the third sub-division of section 364, may be given in evidence under the plea of not guilty.

[Fourth REP.)

$ 371. If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, or upon an objection to the form or substance of the indictment, it shall not be deemed an acquittal of the same offence.

$ 372. Where, however, he shall have been acquitted on the merits, he shall be deemed acquitted of the same offence, notwithstanding any defect in form or substance in the indictment on which he was acquitted.

$ 373. Where the defendant shall have been convicted or acquitted, upon an indictment for an offence, consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offence charged in the former, or for any inferior degree of that offence, or for an attempt to commit the same, or for an offence necessarily included therein, of which he might have been convicted under that indictment as provided in sections 521 and 522.

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PTER

$ 374. If the defendant refuse to answer the indictment, by demurrer or plea, a plea of not guilty shall be entered.

CHAPTER VII.

Removal of the action before trial. § 375. All writs and other proceedings heretofore existing, for the removal of criminal actions prosecuted by indictment, from one court to another, before trial, are abolished; and the only mode of removing a criminal action, prosecuted by indictment, from one court to another, before trial, shall be that prescribed by this chapter.

§ 376. A criminal action prosecuted by indictment, may, at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases:

1. From a court of sessions, or a mayor's or recorder's court, to the court of oyer and terminer of the same county, for good cause shown:

2. From a court of oyer and terminer or sessions, or a mayor's or recorder's court, to the court of oyer and terminer of another county, on the ground that a fair and impartial trial cannot be had in the county or city, where the indictment is pending.

§ 377. If one or more trials be had, and a new trial is necessary, either by reason of the discharge of a jury, without a verdict, or of the granting of a new trial, the removal may be allowed at any time before the new trial.

$ 378. The application for the order of removal must be made to the supreme court, at a special term in the district, upon service of notice of at least ten days on the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded.

$ 379. To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment until the applieation can be made and decided.

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§ 330. When an application for an order to stay the trial is made to a judge of the supreme court, he shall endorse his decision on the affidavits or other papers presented to him, and cause them to be forth with filed with the clerk of the court in which the indietment is pending

$ 381. If the application for an order to stay the trial be made to one judge and denied, a similar application shall not be made to another judge.

$ 382. A violation of the last section shall be punishable as a misdemeanor, and as a contempt of the court in which the indictment is pending; and that court shall vacate an order of removal made in violation thereof.

$ 383. If the supreme court order the removal of the action, a certified copy of the order for that purpose shall be delivered to and filed by the clerk of the court where the indictment is pending; who shall thereupon transmit the same with a certified copy of the pleadings and proceedings in the action, including the undertakings for the appearance of the defendant or of the witnesses, to the court to which the action is removed.

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