CHAPTER IV. PLEAS, REPLICATIONS, ETC. SECT. 1. Order and Time of Pleading, p. 161. 3. Plea in Abatement, p. 163. 5. Special Pleas in Bar, p. 168. 6. General Issue, p. 179. SECT. 1. ORDER AND TIME OF PLEADING. CRIMINAL proceedings have been specially excepted from statutes changing the system of pleading (e.g., 4 & 5 Anne, c. 3; 4 Anne, c. 16, Ruffhead), and are still to a great extent subject to the common law rules of pleading: 1 Chit. Cr. L. 434. At common law no more than one plea can be pleaded to any indictment or criminal information for misdemeanor. R. v. Charlesworth, 1 B. & S. 460; 31 L. J. (M. C.) 26: R. v. Strahan, 7 Cox, 85. In felonies if the defendant plead in abatement, he must afterwards, if the plea be adjudged against him, plead over to the felony; if he plead specially in bar, he may (R. v. Charlesworth, ubi supra), and should in strictness, at the same time, plead over to the felony. See post, p. 174; and R. v. Drury, 3 C. & K. 196, 200; 18 L. J. (M. C.) 189. When brought to the bar and arraigned (see post, p. 181), the prisoner either confesses the charge, stands mute (see post, p. 183), or does not answer directly to the charge, (see 7 & 8 G. 4, c. 28, s. 2); or pleads to the jurisdiction, or in abatement-or demurs-or pleads specially in baror pleads the general issue, i.e., that he is "not guilty." Except under the express provisions of a statute, it is not permissible to plead double or to join any other plea with the general issue. R. v. Strahan, 7 Cox, 85. When the defendant has any special matter to plead in abatement or in bar, or if the indictment be demurrable, he should plead, or demur at the time of arraignment, before the plea of not guilty. See R. v. Binkes, 2 Smith (K. B.) 620. Where a defendant prosecuted in the King's Bench Division of the High Court in England or Ireland, by information or indictment, for any misdemeanor there found or removed into that court, appears in court in term time in person to answer the indictment or information, he cannot "imparle" to a following term, but must plead or demur thereto within four days from the time of his appearance; and in default of A.C.P. 11 his pleading or demurring within four days, judgment may be entered against him for want of a plea. If he appear to the indictment by attorney, he cannot imparle to the following term, but may forthwith be ruled to plead; and a plea or demurrer may be enforced, or judgment by default entered thereupon, in the same manner as before the passing of the Act might have been done, had the defendant appeared by his attorney in the preceding term. 60 G. 3 & 1 G. 4, c. 4, s. 1. But the court or a judge may, on sufficient cause, allow further time to plead or demur. 60 G. 3 & 1 G. 4, c. 4, s. 2. These provisions do not apply to prosecutions for non-repair of a bridge or highway. 60 G. 3 & 1 G. 4. c. 4, s. 10. SECT. 2. PLEA TO THE JURISDICTION. When available.]-Where an indictment is taken before a court which has no cognizance of the offence, the defendant may plead to the jurisdiction, without answering at all to the crime alleged; 2 Hale, 268; 1 Chit. Cr. L. 437; as if a man were indicted for treason at the quarter sessions, or for a rape at the sheriff's tourn, or the like; ld.; or if another court have exclusive jurisdiction of the offence. 4 Bl. Com. 333. But it is seldom necessary to have recourse to this plea. For it is bad unless it shows a court or jurisdiction in which the defendant could lawfully be tried. If the offence were committed out of the jurisdiction of the English courts, the defendant may take advantage of this matter under the general issue; R. v. Johnson, 6 East, 583; 8 R. R. 550; or if the defect of jurisdiction appears upon the face of the record, he may demur, or (it would seem) move in arrest of judgment, or bring a writ of error. See R. v. Hewitt, R. & R. 158. If, on the other hand, the offence were committed within the local jurisdiction of the court, but the court has not cognizance of it (which can occur only in the case of indictments in inferior courts, such as a court of quarter sessions), the defendant may have advantage of it upon general demurrer; R. v. Fearnley, 1 T. R. 316; 1 Leach, 425; or the High Court, upon the indictment being removed by certiorari, will quash it. R. v. Bainton, 2 Str. 1088. And the court before which the indictment is preferred will, in general, give the defendant advantage of the objection at the trial, under the general issue. In R. v. Balfour, Q. B. D., Oct. 15th, 1895, Bruce, J., it was proposed to put in a plea to the jurisdiction on the ground that the indictment contained counts for offences in respect of which the defendant had not been extradited from the Argentine Republic; but the doubtful counts were withdrawn, and the plea was not in fact pleaded. In R. v. Jameson [1896] 2 Q. B. 425; 65 L. J. (M. C.) 218; objections on the ground of want of jurisdiction were taken (1) on motion to quash the indictment; and (2) when this failed, under the plea of not guilty. Form.]--The form of a plea to the jurisdiction is as follows: "And the said J. S. in his own proper person cometh into court here, and having heard the said indictment read, saith, that the court of our lord the King here ought not to take cognizance of the [trespass and assault] in the said indictment above specified; because protesting that he is not guilty of the same, nevertheless the said J. S. saith, that," [etc., so proceeding to state the matter of the plea. See the precedents, 1 Went. 10, 18; 4 Went. 63. Conclude thus]: "And this he the said J. S. is ready to verify; wherefore he prays judgment if the said court of our lord the King now here will or ought to take cognizance of the indictment aforesaid; and that by the court here he may be dismissed and discharged," etc. Then add profert of any letters patent which may have been set forth in the plea. The form is the same in the King's Bench Division, excepting that the court is described as "The King's Bench Division of His Majesty's High Court of Justice before the King himself here," and in the case of informations, the words, "having heard the said indictment read," are omitted. The plea must be verified by affidavit. The form of the replication to this plea is :-And hereupon J. K. A. [the clerk of the court], who prosecutes for our said lord the King in this behalf, says, that notwithstanding anything by the said J. S. above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid; because he says that," [etc., stating the matter of the replication]." And this the said J. N. prays may be inquired of by the country,” etc. Or, if it concludes with a verification, then thus:-" And this he the said H. K. A. is ready to verify; wherefore he prays judgment, and that the said J. S. may answer to the said indictment." Where the plea is pleaded in the King's Bench Division, the replication is in the name of the master of the crown office, in the case of an indictment or of an information filed by him; or in the name of the attorney-general, in the case of informations ex officio. See post, p. 168. If a plea to the jurisdiction is quashed on demurrer or otherwise fails the defendant may be ordered to plead over instanter. R. v. Johnson, ubi supra. SECT. 3. PLEA IN ABATEMENT. A PLEA in abatement must be pleaded before pleading the general issue. Without confessing or denying the fact charged, it sets up some fact which if proved defeats the indictment. It is, therefore, purely dilatory, must be pleaded exactly (O'Connell v. R., 5 St. Tr., N. S. 1, 787), and cannot be amended. R. v. Cooke, 2 B. & C. 871. It had by 1826 fallen into disuse in England except as to misnomer or want of proper addition (1 H. 5, c. 5) (see ante, p. 56). The Criminal Law Act, 1826 (7 G. 4, c. 64), s. 19, has rendered pleas in abatement useless by enacting that "no indictment or information shall be abated by reason of any dilatory plea of misnomer or of want of addition, or of wrong addition of the party offering such plea, if the court shall be satisfied, by affidavit or otherwise, of the truth of such plea; but in such case the court shall forthwith cause the indictment or information to be amended according to the truth, and call upon the party to plead thereto, and proceed as if no such dilatory plea had been pleaded." And they are virtually abolished by 14 & 15 Vict. c. 100, s. 24, which enacts that no indictment shall be held insufficient "for want of or imperfection in the addition of any defendant." See ante, p. 54. For form of plea in abatement see R. v. Shakespeare, 10 East, 83: R. v. Sheares, 27 St. Tr. 267; R. v. Duffy, 7 St. Tr., N. S. 795, 806. In R. v. Swan, Fost. 105, a plea in abatement and demurrer thereto were allowed to be pleaded ore tenus. In Ireland it has been used as a mode of objecting to the qualification of grand jurors. R. v. Sheares, 27 St. Tr. 255, 267: R. v. Sheridan, 31 St. Tr. 513, 576; R. v. Duffy, 7 St. Tr., N. S. 795, 805. See post, p. 201. It is not settled whether the statutes cited ante, p. 163, affect the right of a peer, when indicted as a commoner, to plead in abatement of an indictment for treason, misprision of treason, or felony. His title is not only part of his name, but gives him a different mode of trial, viz., by his peers, which apparently cannot be waived. See Lord Graves' case, 4 St. Tr., N. S. 609, n.: 310 Hansard, 246, and post, p. 182. The judgment against the King on a plea in abatement at common law was that the indictment be quashed, and was no bar to a fresh indictment properly framed. Under 7 G. 4, c. 64, s. 19, the indictment may be amended, and the defendant called to plead thereto, as if no such dilatory plea had been pleaded. The judgment for the King upon a plea of abatement, in misdemeanors, is final; in treason and felony, that the defendant do answer over. R. v. Gibson, 8 East, 107. SECT. 4. By a demurrer to an indictment or information the defendant refers it to the court to pronounce whether, admitting the matters of fact alleged against him to be true, they do, in point of law, constitute him guilty of an offence sufficiently charged against him. 1 Starkie, Cr. Pl. 315 (2nd ed.). Demurrers are of two kinds: 1. Special, usually called domurrers in abatement, based on some formal defect in the indictment. 2. General, founded on some substantial defect in the indictment or last preceding pleading. And if the party plead to the indictment, or reply to a plea in bar, it will then be too late to demur unless the court consents to withdrawal of the plea or replication. 66 Special demurrers.]-Special demurrers seem altogether obsolete. Many omissions in an indictment, which formerly rendered it the subject of special demurrer, have become altogether immaterial since the passing of 14 & 15 Vict. c. 100, s. 24, which enacts that no indictment," "information," "inquisition," " presentment,” “plea,” "replication," or other pleading, or any nisi prius record (14 & 15 Vict. c. 100, s. 30), "for any offence shall be held insufficient 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 'against the forms of the statutes,' or vice versâ, nor for that any person mentioned in the indictment is designated by a name of office, or other descriptive appellation, instead of his proper name, nor för 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 on an impossible day, or on a day that never happened, nor for want of a proper or perfect venue, nor for want of a proper or formal conclusion, nor for want of or imperfection in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence." It is therefore useless to demur in respect of the defects specified in that section, and in respect of other formal defects in an indictment, the utility of a special demurrer as a weapon of defence appears to be entirely taken away by s. 25 of 14 & 15 Vict. c. 100, which enacts that "every objection to any indictment for any formal defect apparent on the face thereof shall be taken, by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared." See R. v. O'Callaghan, 14 Cox, 499: R. v. Titley, Id. 502. General demurrers.]-Where, however, there is a defect in substance apparent on the face of the indictment, the defendant may still take advantage of it by general demurrer, and if he pleads over, instead of demurring or moving to quash the indictment (as to which see ante, p. 120) the defect will in numerous cases be cured by verdict. Thus, by 7 G. 4, c. 64, s. 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." And, independently of that enactment, it is a general rule of pleading at common law-in criminal as in civil cases-that, where an averment which is necessary for the support of the pleading is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by the verdict. Heymann v. R., L. R., 8 Q. B. 102, 105: R. v. Goldsmith, L. R., 2 C. C. R. 74; 42 L. J. (M. C.) 94: Taylor v. R. [1895] 1 Q. B. 25; 61 L. J. (M. C.) 11 ante, p. 85. In the cases of defects in substance apparent on the face of the indictment which do not fall within one of the classes mentioned either in 7 G. 4, c. 64, s. 21, or in Heymann v. R. (ubi supra), and are therefore not cured by verdict, the defendant may, instead of demurring, plead "not guilty; " and then if convicted, move in arrest of judgment, thus giving himself the same advantage which he could have had upon demurrer, after having had a chance of an acquittal on his plea of not guilty. The frequent adoption of this course in practice appears to be one of the main causes of the infrequency of demurrers in criminal practice. Archb. Cr. Pl. 126 (17th ed.); 1 Starkie Cr. Pl. 315 (2nd ed.). An additional reason for its adoption lies in the fact that the point of law raised on his motion can be reserved for the Court for Crown Cases Reserved. R. v. Martin, 1 Den. 398; 18 L. J. (M. C.) 137; and probably since the cases of Heymann v. R. (ubi supra) and R. v. Goldsmith (ubi supra) have called attention to the state of the law on this subject, demurrers and motions to quash indictments (as to which see ante, p. 120) may become somewhat more usual than they had hitherto been. But, inasmuch as the practice last stated is of value only in the case of defects not cured by verdict, there remain a few cases in which it may be expedient to resort to a general demurrer. The objections to the latter course are: (1) that points of law raised on demurrer cannot be reserved for the consideration of the Court for Crown Cases Reserved, R. v. Fadermann, 1 Den. 565; 19 L. J. (M. C.) 147, and that the judgment on demurrer can be reviewed only by writ of error (Id.); (2) that a |