indictment, the court may, at any time after the indictment is found, order the defendant into actual custody, unless he give bail with new sureties or in an increased amount, to be specified in the order. [L. 1864; D. Cd. § 113; H. C. § 1312.]

§ 1348. When Defendant Committed Notwithstanding Bail.

If the defendant be present when the order is made, he must be forthwith committed accordingly; but if he be not present, a bench warrant must be issued and proceeded upon in the manner provided in this chapter. [L. 1864; D. Cd. §114; H. C. § 1313.]

§ 1349. Indictment, When Set Aside on Motion.

The indictment must be set aside by the court, upon the motion of the defendant, in either of the following cases:

1. When it is not found, indorsed, and presented as prescribed in chapter VII of title XVIII of this code;

2. When the names of the witnesses, examined before the grand jury, are not inserted at the foot of the indictment or indorsed thereon. [L. 1864; D. Cd. § 115; H. C. § 1314.]

These are the only two causes for which an indictment may be set aside. The fact that an attorney assisting the prosecuting attorney was present at the investigation of the grand jury is not one of the causes, and therefore not a cause for setting aside an indictment: State v. Whitney, 7 Or. 388; State v. Justus, 11 Or. 180, 8 Pac. 337, 50 Am. Rep. 470.

The objection that an indictment was not found according to law must be made upon motion, and, if not so made, it is deemed to be waived: State v. Reinhart, 26 Or. 472, 38 Pac. 822; and the objection must be made before plea: State v. Witt, 33 Or. 596, 55 Pac. 1053; thus, the objection that the grand jury or some member thereof was irregularly selected must be made before plea: State v. Witt, 33 Or. 595, 55 Pac. 1053; so an objection on the ground that the indictment was not properly indorsed: State v. McElvain, 35 Or. 366, 58 Pac. 525.

A demurrer is in the nature of a plea in this regard, and if the defendant demurs without moving to set aside the indictment, he thereby waives his objection to the indictment: State v. Smith, 33 Or. 485, 55 Pac. 534; State v. Pool, 20 Or. 150, 25 Pac. 375; State v. McElvain, 35 Or. 366, 58 Pac. 525.

But if the objection is taken in the proper time the indictment must be set aside, and a failure so to do will be a cause of reversal: State v. Andrews, 35 Or. 390, 58 Pac. 765.

Where an indictment is set aside and the cause resubmitted to the same grand jury, a subsequent indictment found under such resubmission must contain the names of the witnesses examined when the first indictment was found, as well as the names of those examined when the second one was found: State v. Andrews, 35 Or. 390, 58 Pac. 765.

§ 1350. Motion to Set Aside, when Made and Heard.

The motion to set aside the indictment must be made and heard at the time of the arraignment, unless for good cause the court postpone the hearing to a future time, and if not so made, the defendant is precluded from afterwards taking the objections mentioned in section 1349. [L. 1864; D. Cd. § 116; H. C. § 1315.]

See note to preceding section.

$ 1351. Motion, if Granted, Proceeding Thereon.

If the motion be allowed, the court must order that the defendant, if in custody, be discharged therefrom; or if he have given bail or deposited money in lieu thereof, that his bail be exonerated or his money refunded. to him, unless it direct that the case be resubmitted to the same or another grand jury. [L. 1864; D. Cd. § 117; H. C. § 1316.]

§ 1352. Order for Resubmission to the Grand Jury, and Effect Of.

If the court direct that the case be resubmitted, the defendant, if then in custody, must so remain, unless he be admitted to bail; or if he have already given bail, or deposited money in lieu thereof, such bail or money is answerable for the appearance of the defendant to answer a new indictment, if one be found. [L. 1864; D. Cd. § 118; H. C. § 1317.]

When a defendant has been admitted to motion or demurrer of defendant under this bail after being indicted, a resubmission of and § 1363, post, releases the sureties on the matter to the grand jury, unless, per- the bond: Hyde v. Cross, 25 Or. 543, 37 haps, to remove a mere formal defect Pac. 59. without defendant's consent, or upon a

§ 1353. New Indictment, When to be Found or Defendant Discharged. Unless a new indictment be found before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed by section 1351. [L. 1864; D. Cd. § 119; H. C. § 1318.]

§ 1354. Order to Set Aside Indictment, not a Bar.

An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same crime. [L. 1864; D. Cd. § 120; H. C. § 1319.]

§ 1355. Demurrer or Plea, Defendant's Only Pleading.

The only pleading on the part of the defendant is either a demurrer or plea. [L. 1864; D. Cd. § 121; H. C. § 1320.]

$1356. Time for Demurrer or Plea.

Both the demurrer and plea must be put in, in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose. [L. 1864; D. Cd. § 122; H. C. § 1321.]

§ 1357. Demurrer, Grounds Of.

The defendant may demur to the indictment when it appears upon the face thereof either,

1. That the grand jury by which it was found had not legal authority to inquire into the crime charged because the same is not triable within the county;

2. That it does not substantially conform to the requirements of chapter VIII of title XVIII of this code;

3. That more than one crime is charged in the indictment;

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

5. That the indictment contains any matter which, if true, would constitute a legal justification or excuse of the crime charged, or other legal bar to the action. [L. 1864; D. Cd. § 123; H. C. § 1322.]

If the demurrer to an indictment that charges more than one crime is not interposed at the proper time it is waived: State v. Jarvis, 18 Or. 362, 23 Pac. 251; State v. Lee. 33 Or. 508, 56 Pac. 415; State V. Carlson, 39 Or. 19, 62 Pac. 1019.

must prevail, and is not waived by a plea of not guilty, or cured by a judgment of conviction: State v. Hinkle, 33 Or. 95, 54 Pac. 155.

The objection that the indictment does not substantially conform to the requireBut if interposed at the proper time, it ments of chapter VIII of title XVIII, is

waived by failure to demur: State V. Bruce, 5 Or. 69, 20 Am. Rep. 734.

Where the indictment states facts sufficient to constitute a crime, but they are defectively stated, and would be subject to demurrer if such were interposed at the proper time, the objection is waived if such demurrer be not interposed: State v. Doty, 5 Or. 493; State v. Horne, 20 Or. 485, 26 Pac. 665.

An objection that an indictment for obtaining money under false pretenses does

not sufficiently describe the false token must be made by demurrer, and can not be raised for the first time at the trial by motion to dismiss: State v. Bloodsworth, 25 Or. 88, 34 Pac. 1023.

The objection that the facts stated in an indictment do not constitute a crime may be taken for the first time in the appellate court, and is not waived by failing to demur or move in arrest of judgment in the trial court: State v. Mack, 20 Or. 236, 25 Pac. 639.

§ 1358. Demurrer, how put in and Its Form.

The demurrer must be in writing, signed either by the defendant or his attorney, and filed. It must distinctly specify the ground of objection to the indictment, or it may be disregarded. [L. 1864; D. Cd. § 124; H. C. $1323.]

$ 1359. Demurrer, when Heard.

Upon the demurrer being filed, the objections presented thereby must be heard, either immediately or at such time as the court may direct. [L. 1864; D. Cd. § 125; H. C. § 1324.]

$1360. Judgment on Demurrer.

Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an entry to that effect must be entered in the journal. [L. 1864; D. Cd. § 126; H. C. § 1325.]

§ 1361. Proceeding when Demurrer Allowed.

If the demurrer be allowed, the judgment is final upon the indictment demurred to, and is a bar to another action for the same crime, 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 resubmitted to the same or another grand jury. [L. 1864; D. Cd. § 127; H. C. § 1326.]

§ 1362. If Resubmission not Ordered Defendant to be Discharged.

If the court do not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money in lieu thereof, the money must be refunded to him. [L. 1864; D. Cd. § 128; H. C. § 1327.]

$1363. Proceeding if Resubmission Ordered.

If the court direct that the case be resubmitted, the same proceedings must be had thereon as are prescribed in sections 1352 and 1353. [L. 1864; D. Cd. §129; H. C. § 1328.]

When a defendant has been admitted to resubmission was to remedy a mere formal bail after being indicted, a resubmission of defect, without defendant's consent. or the matter to the grand jury releases the upon a motion or demurrer of the defendsureties on the bond, unless, perhaps, the ant: Hyde v. Cross, 25 Or. 543, 37 Pac. 59.

§ 1364. Proceeding if Demurrer be Disallowed.

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; but if he do not plead, the judgment must be given against him. [L. 1864; D. Cd. § 130; H. C. § 1329.]

§ 1365. What Objections Must be Taken by Demurrer.

When the objections mentioned in section 1357 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 crime, may be taken at the trial, under the plea of not guilty and in arrest of judgment. [L. 1864; D. Cd. § 131; H. C. § 1330.]

See note to § 1357, ante.

§ 1366. Pleas to Indictment, Different Kinds Of.

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 not guilty. [L. 1864; D. Cd. §132; H. C. § 1331.]

A plea of guilty to a charge of violating a city ordinance is only an admission that the defendant committed the acts charged, and is immaterial where the ordinance is void: Grossman v. Oakland, 30 Or. 485, 41 Pac. 5, 60 Am. St. Rep. 832, 36 L. R. A. 478.

A plea of insanity is inadmissible, but such defense is interposed when the defend

ant introduces testimony tending to show the state of his mind when the crime with which he is charged was committed: State v. Branton, 33 Or. 550, 56 Pac. 267.

Criminal pleadings are governed by statute, and as there is no statutory requirement of a reply to a plea of former jeopardy, none is required: State v. Howe, 27 Or. 145, 44 Pac. 672.

$ 1367. Plea, how to put in and Its Form.

Every plea must be oral, and must be entered on the journal of the court in substantially the following form:

1. If the defendant pleads guilty: "The defendant pleads that he is guilty of the crime charged in this indictment;"

2. If he pleads not guilty: "The defendant pleads that he is not guilty of the crime 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 crime charged in this indictment, by the judgment of the court of (naming it), rendered at

(naming the place), on the

19–.” [L. 1864; D. Cd. § 133; H. C. § 1332.]

day of

§ 1368. Plea of Guilty Must be put in in Person, Except in Case of Corporation. A plea of guilty must in all cases be put in by the defendant in person, in open court, unless upon an indictment against a corporation, in which case it may be put in by counsel. [L. 1864; D. Cd. § 134; H. C. 1333.]

§ 1369. Plea of Guilty, When and How Withdrawn.

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 therefor. [L. 1864 ; D. Cd. § 135 ; H. C. § 1334.

§ 1370. Plea of Not Guilty, What it Controverts.

The plea of not guilty controverts and is a denial of every material allegation in the indictment. [L. 1864; D. Cd. § 136; H. C. § 1335.]

A proceeding for the punishment of a the affidavit charging the offense comcontempt is quasi criminal in character. plained of: State ex rel. v. Lavery, 31 Or. Such being the case, a plea of not guilty 83, 49 Pac. 852.

puts in issue all material allegations of

§ 1371. Plea of Not Guilty, What May be Given in Evidence Under It.

All matters of fact tending to establish a defense to the charge in the indictment, other than those specified in the third subdivision of section 1366, may be given in evidence under the plea of not guilty. [L. 1864; D. Cd. § 137 ; H. C. § 1336.]

Evidence may be given under a plea of not guilty of the mental state of the defendant, as no plea of insanity is authorized by the code: State v. Branton, 33 Or. 550, 56 Pac. 267.

§ 1372. What is Not Deemed a Former Acquittal.

If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, or the indictment were dismissed upon a demurrer to its form or substance, or discharged for want of prosecution, without a judgment of acquittal or in bar of another prosecution, it is not an acquittal of the same crime. [L. 1864; D. Cd. § 138; H. C. § 1337.]

See note to Art. I, § 12, Oregon Constitution.

§ 1373. What is Deemed a Former Acquittal.

When, however, the defendant was acquitted on the merits, he is deemed acquitted of the same crime, notwithstanding a defect in form or substance in the indictment on which he was acquitted. [L. 1864; D. Cd. § 139; H. C. § 1338.]

See note to Art. I, § 12, Oregon Constitu- is fatally defective. will not support a tion. plea of former jeopardy under this section: State v. Littschke, 27 Or. 192, 40 Pac. 167.

An acquittal by the direction of the court, after the testimony of the state is concluded, on the ground that the indictment

§ 1374. Crime of Different Degrees - Conviction or Acquittal, When a Bar. When the defendant shall have been convicted or acquitted upon an indictment for a crime consisting of different degrees, such conviction or acquittal is a bar to another indictment for the crime charged in the former, or for any inferior degree of that crime, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment, as provided in sections 1397 and 1398. [L. 1864; D. Cd. § 140 ; H. C. § 1339.]

See note to Art. I, § 12, Oregon Constitution.