And the judges will not in general admit an accomplice as king's evidence, if it appear that he is charged with any other felony than that on the trial of which he is to be witness.-Ibid.

3. The prisoner, on an indictment, instead of confessing or standing mute, may plead.

CHAPTER XXV.

OF PLEA AND ISSUE.

THE plea is the defensive matter alleged by the defendant in answer to the indictment or information, supposing him neither to confess nor to stand mute.

The time for pleading on an indictment for felony, in any court, is in general instanter upon the arraignment.1 Chit. Cr. Law, 432; 6 East, 587.

By 60 Geo. 3, and 1 Geo. 4, c. 4, in all cases of indictment for misdemeanor, at sessions or assizes, (except for not repairing of bridges or highways,) if the defendant have been in custody or on bail twenty days at the least upon the same charge, he must upon the finding of the indictment plead and try instanter; and if the indictment be found at a former sessions or assizes, and the defendant be in custody or on bail for the same offence, or receive notice of the indictment twenty days before any subsequent session or assizes, he must at such subsequent session or assizes plead and try. But the court may allow him further time to plead or try, upon cause shown.

By the same statute, where the defendant is prosecuted for misdemeanor, by information, or by indictment found, in the King's Bench, or removed into that court, he must plead or demur within four days from the time of his appearance, and in default thereof judgment may be entered against him for want of a plea. But the court or a judge may, on sufficient cause, allow further time to plead or demur.-Ibid.

The court have a discretionary power at common law, of allowing a party indicted to defend in formâ pauperis.1 Chitty, Cr. Law, 413.

The effect of being allowed to defend in this manner, is, that he has counsel and clerk assigned him by the court, and he is not liable to pay office fees.-1 Chitty, Cr. Law, 413.

There are various proceedings in the nature of plea.

1. A Plea to the Jurisdiction.

This is where an indictment is taken before a court that hath no cognizance of the offence, as if a man be indicted for a rape at the sheriff's torn, or for treason at the quarter sessions, or if another court have exclusive jurisdiction of the offence. It consists of an exception to the jurisdiction of the court, without answering at all to the crime alleged. It must in order of time be pleaded before any other plea, and in general must be supported by affidavit.-4 Bl. C. 333; Arch. 74.

But this kind of objection may be taken not only in the form of a plea to the jurisdiction, but (in general) under the plea of not guilty also; and where the case is such that it appears on the face of the record, it may also be taken by demurrer, motion in arrest of judgment, or writ of error; and as these latter modes of proceeding give the defendant the additional chance of an acquittal on the merits, a plea to the jurisdiction is of rare occurrence.-Arch. 74.

To this plea the crown may demur or reply instanter; and if the plea is found against the defendant, he has judgment, in case of felony, to answer over to the felony. But in case of misdemeanor no judgment of respondeat ouster is of right demandable after the plea is found against the defendant upon matter of fact; for the decision operates as a conviction. But as a matter of favour he may still be admitted to plead not guilty.-1 Chitty, Cr. Law, 439.

2. A Demurrer.

This is when the fact alleged is allowed to be true, but exception is taken to the indictment or information in point of law, as insufficient on the face of it to charge the defendant; and the insufficiency may be either in matter of

form, as where the words contra pacem are omitted, (vid sup. as to the requisites of an indictment,) or in matter o substance, as when the fact stated does not amount in law to felony or misdemeanor, as charged.-1 Chitty, Cr. Law, 439; 4 Bl. C. 333.

Upon demurrer, issue is joined by the prosecutor on behalf of the crown, and the question of law thus arising is determined by the court.-1 Chitty, Cr. Law, 441.

If a demurrer to the indictment or information be determined for the defendant, the judgment is, that he be dismissed and discharged; or if on a mere formal objection, that the indictment be quashed. If against the defendant, judgment and execution are awarded against him, in case of misdemeanor, as if he had been convicted by verdict. In case of felony the better opinion seems to be, that the judgment is not final, but that the defendant is at liberty, in favorem vitæ, to plead over, not guilty.-1 Chitty, Cr. Law, 441, 442, 443; 4 Bl. C. 334.

Objections to the indictment or information for insufficiency in substance, may be taken not only in the way of demurrer, but by motion in arrest of judgment and writ of error also, or under the plea of not guilty; and as these latter modes of proceeding give the defendant the additional chance of an acquittal on the merits, a demurrer is in such cases not usual.-4 Bl. C. 334.

But there are many formal objections which can not now be taken except in the way of demurrer. For by 7 Geo. 4, c. 64, s. 20, no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved; nor for the omission of the words "as appears by the record," or of the words "with force and arms," or of the words "against the peace;" nor for the insertion of the words "against the form of the statute" instead of the words "against the form of the statutes," or vice versâ; nor for that any person or persons mentioned in the indictment or information is or are desig

nated by a name of office or other descriptive appellation instead of his, her or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or a day that never happened; nor for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence.

And by sect. 21, where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy, by any statute, the indictment or information shall after verdict be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the

statute.

An information may be amended after demurrer.— Arch. 80.

But an indictment cannot be amended except by consent of the grand jury before they are discharged.-Ibid.

3. A Plea in Abatement.

This is a plea alleging some matter of form as a ground for quashing the indictment or information; as if James Allen is indicted by the name of John Allen, he may plead that he has the name of James and not of John.-4 Bl. C. 334.

Pleas in abatement have rarely occurred except in this instance of misnomer.-4 Bl. C. 334; Arch. 75.

This kind of plea should be pleaded before any plea in bar.-1 Chitty, Cr. Law, 447.

It should be engrossed on parchment or paper, and there must be an affidavit annexed to it of its being true. 1 Chitty, Cr. Law, 448; Arch. 75.

By 7 Geo. 4, c. 64, s. 19, no indictment or information