Return and recording of indictment.

SECTION.

CHAPTER III.

PROCEEDINGS PRELIMINARY TO THE TRIAL.

SECTION.

1. Return and recording of indict- 3. Plea in abatement, and special plea

ment.

2. Motion to quash-Non pros.

in bar.

4. Continuance.

5. Change of venue.

SEC. 1. RETURN AND RECORDING OF INDICTMENT.

SEC. 68. Every indictment must be recorded by the clerk during the term at which the same is found, in a book to be kept for that purpose. The judge must compare the record with the original indictments, and certify the correctness thereof. In case the original indictment is lost or destroyed, the defendant may be tried upon a copy taken from the record and certified by the clerk, without any delay from that cause. 2 R. S. 388.

Loss of information.

SEC. 69. In case of the loss or destruction of an information, the prosecuting attorney may file in court another information, and the prosecution shall proceed, and trial be had, without any delay from that cause. Id. 389.

Effect of recording.-By this section, the indictment becomes a record, and is evidence of the finding and contents thereof. 39 Ind. 445; 23 Ind. 150.

Nunc pro tunc entry.-Where an indictment, duly returned into court by a proper grand jury, has there remained without being filed, and without any record of such return, it is the duty of such court, upon being informed of such facts, to direct the making of a proper nunc pro tunc entry, showing the returning and filing of such indictment. 56 Ind. 133.

Same. To a plea by the defendant, in abatement of an indictment, alleging the failure of the clerk of the court to indorse upon such indictment the time of its filing, and to enter of record the

Return and recording of indictment.

return of the same into court by the grand jury, a reply that such omissions have been cured by nunc pro tunc entry, made by the order of such court, is sufficient. Ibid.

Abatement of indictment-Nunc pro tunc.-To a plea in abatement of an indictment, alleging that no record of the return thereof had been made, and that the date of the filing thereof had not been indorsed thereon, it is sufficient to reply that such omissions have been cured by a nunc pro tunc entry thereof, made by order of the court. 56 Ind. 182.

Destruction of unrecorded indictment.-The defendant in a criminal prosecution can not be put upon trial on an indictment against him, which has been destroyed, and of which there is no record. 56 Ind. 208.

Same. Where a record has been made of an indictment which has been destroyed, the defendant may be put upon trial on a certified copy of the same. Ibid., modifying 39 Ind. 438.

Destruction of indictment-Nunc pro tunc.-The defendant in a criminal prosecution can not be put upon trial on a nunc pro tunc entry, made by the order of the court, showing the return into court, by the grand jury, of an indictment against the defendant, and that it had been destroyed. 56 Ind. 210.

Lost papers. In a criminal prosecution, on appeal, where the clerk returns to a certiorari, that the papers are lost, and copies of the indictment or information can not be given, the judgment below will be reversed by this court. 21 Ind. 279.

When indictment becomes part of record.-An indictment becomes a part of the record when filed, without any further action of the court. 24 Ind. 142.

Return and filing.-Where the record recites that the grand jury came into "open court and returned the following indictment," giving its number, and setting it out, it sufficiently shows that it was returned into open court, and sufficiently identifies the indictment. 46 Ind. 363.

Same. The statute does not require the clerk to file an indictment in open court, or that the act of marking it filed shall be done in open court. Ibid.

When need not be recorded.-An indictment, if the venue be changed, need not be recorded in the court in which it was found. 6 Blackf. 299.

Motion to quash-Non pros.

Entry-Return of indictments.

Now comes the grand jury, and returns into court the following indictments:

Each of which indictments is indorsed "a true bill," and signed by the foreman. And the said grand jury having further business before them, now here retire to their room for deliberation.

SEC. 2. MOTION TO QUASH-NON-PROS.

When indictment, etc., may be quashed.

SEC. 101. The court may quash an indictment, on motion, when it appears upon its face, either, First. That the grand jury had no legal authority to inquire into the offense charged; Second. That the facts stated do not constitute a public offense; Third. That the indictment contains any matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution. 2 R. S. 399.

When non-prossed.

SEC. 102. No indictment shall be non-prossed except by order of the court, on motion. Ibid.

When made.-A motion to quash an indictment can not be regularly made after pleading to the same. 48 Ind. 483. See also 14 Ind. 139.

Same-Waiver.-Where a defendant, to obviate the necessity of returning the indictment to the grand jury for a correction of the date at which the offense was laid as having been committed, consented to the correction in open court, and to a waiver of record of all objection, and then pleaded to the indictment, and afterward moved to quash on account of the correction, it was, held, that the motion was correctly overruled. 14 Ind. 39.

What motion predicated upon.—A motion to quash an indictment

Motion to quash-Non pros.

must, as a general rule, be predicated upon objections apparent upon the face of the indictment. 46 Ind. 363.

Different counts-Different persons.-The fact that in an indictment consisting of several counts, in all of which the same felony is charged, some of the counts, charging the offense against the same persons charged in the others, include also another person as defendant, does not render the whole indictment bad. 32 Ind. 62. Nolle prosequi.-It is settled law in this state, that where a legal indictment has been returned by a competent grand jury to a court having jurisdiction of the person and the offense, and the defendant has pleaded, and a traverse jury has been duly impaneled and sworn, and all the preliminary requisites of record are ready for the trial; the prisoner has been once put in jeopardy, and in such case, the prosecuting attorney can not, even with the consent of the court, enter a nol. pros., and indict the defendant again for the same offense. 14 Ind. 139.

Same. But when the indictment is so defective in form, that if the defendant were found guilty, he would be entitled to have any judgment which could be entered thereon against him reversed; or, if the judge discover any defect, after the trial has commenced, which would render a verdict against the prisoner void or voidable, then the judge, upon his own motion, may stop the trial, and what may have transpired will be no bar to future proceedings, and the prosecuting attorney may nol. pros. such indictment and procure a new one. Ibid.

Duplicity not a ground for quashal.-An indictment charged that the defendant "on," etc., "at," etc., "not being then and there licensed," etc., " unlawfully sold to," etc., "intoxicating liquor in a less quantity than a quart at a time, to-wit, the quantity of two gills, at and for the price of ten cents, to be then and there drank, and suffered to be drank, in the house," etc., of the defendant. Held, that the indictment was not bad for duplicity. Held, also, that duplicity is not ground for quashing such indictment. Held, also, that the charge of selling intoxicating liquor in a less quantity than a quart at a time, without a license, is complete in itself, without reference to the charge of selling " to be drank in the house," etc., which is incomplete, and is mere surplusage when connected with the charge alleged. 54 Ind. 438. See, as to duplicity, 53 Ind. 160, 162; 52 Id. 187; 47 Id. 208; 33 Id. 304; 26 Id. 191; 25 Id. 331; 14 Id. 590; 4 Id. 141, 246; 2 Id. 37; 8 Blackf. 151; 489; 6 Id. 109; 5 Id. 314.

Plea in abatement and special plea in bar.

Figures instead of words.-An indictment can not be quashed, under the statute of 1852, for the reason that the time when the of fense is stated to have been committed in given in figures instead of words. 8 Ind. 336.

Selecting grand jury-Manner of, not ground for quashal. 7 Blackf. 19, 324; 6 Id. 104, 248.

The statute does not require the motion to quash to be in writing. General motion to quash several counts.-A motion to quash an indictment consisting of several counts, addressed jointly to all, should be overruled if any one of them is sufficient. 58 Ind. 293. (See Joinder of Counts.)

[Title, etc., as before.]

Entry.

Now comes the defendant, and moves to quash the indictment herein, and the court being, fully advised, sustains said motion. The court further orders said defendant to be committed to the custody of the sheriff.

SEC. 3. PLEA IN ABATEMENT AND SPECIAL PLEA IN BAR.

When to be made. The plea in abatement must be put in before the plea of not guilty. Bicknell's Crim. Pr. 113.

When it is proper.—The plea in abatement is proper whenever any irregularity exists, not apparent upon the face of the indictment, but involved in the proceedings, and yet not affecting the substantial merits of the charge. 6 Blackf. 436. Bicknell's Crim. Pr. 113.

Mistake in name.-A mistake in the name of the defendant must be taken advantage of by plea in abatement. 8 Blackf. 202; 4 Ind. 632.

Grand jury.-It can not be pleaded in abatement, that the indictment was found without evidence, or that no vote was taken by the grand jury. 24 Ind. 151.

Grand jury.

SEC. 12. No plea in abatement, or other objection, shall be taken to any grand jury duly charged and sworn, for any alleged irregularity in their selection, unless such irregularity, in the opinion of the court, amounts to corruption, in which case such plea or objection shall be received. 2 R. S. 419. See 4 Blackf. 73. See title, Grand Jury.