prosecutions the accused shall have the right to appear and defend in person and by counsel." And it is also provided by statute that "every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense." The court may compel the counsel as an officer of the court, subject to its authority to defend the accused against unjust conviction. In making the defense the counsel only performs an official duty for which no compensation is provided; therefore he cannot recover from the county pay for such services.*

§828. Private Consultation with Counsel. The statute provides that "in all cases counsel shall have access to persons confined, and shall have the right to see and consult such persons in private." And there is another statute which makes an officer having the custody of the accused liable to him for a penalty of one hundred dollars for refusing to allow him to see and consult with any practicing attorney in this state which the accused may desire to see. Whether such officer for such refusal may also be punished for a palpable omission of duty under the statute, does not seem clear.

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$829. Copy of Indictment. "Every person charged with treason, murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment, and a list of the jurors and witnesses. In all other cases he shall at his request, or the request of his counsel, be furnish

3

1R. S., 60 Const. of Ills., Art. II., §9.

R. S., 410, § 422.

Vise v. Hamilton, 19 Ills., 78, 79; Carpenter v. County of Dane, 9 Wis., 274; County of Dane v. Smith, 13 Wis., 583.

* Vise v. Hamilton, 19 Ills., 78; Rowe z. Yuba County, 17 Cal., 61; contra, Web v. Baird, 6 Ind., 13, 18; Blythe v. State, 4 Ind., 525; Carpenter v. County of Dane, 9 Wis., 274; County of Dane v. Smith, 13 Wis., 583; Hall v. Washington, 2 Greene Iowa, 473; Samuels . Dubuque, 13 Iɔwa, 536; Com. v. Hall, 7 Watts, 290.

ed with a copy of the indictment and a list of the jurors and witnesses.""

830. Motion to Quash Indictment.

"All exceptions which

go merely to the form of an indictment shall be made before trial, and no motion in arrest of judgment or writ of error, shall be sustained for any matter not affecting the real merits of the offense charged in the indictment. No indictment shall be quashed for the want of the words, "with force and arms," or "of occupation, or place of residence of the accused," nor “by reason of the disqualification of any grand juror.”

831. When Made. The words of the statute requiring the motion to "be made before trial," have been construed to mean before pleading, and since these motions are of a dilatory character they are required to be made in apt time, that is at the earliest practicable moment."

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§ 832. In What Cases. Where a defect appears upon the face of the indictment or of a count in it, a motion to quash the indictment or count should be sustained by the court;7 but where the defect does not so appear, the better practice would be to plead it in abatement; although there are numer

1R. S., 409, § 421. If a copy of the indictment and a list of the jurors and witnesses are not furnished on demand made before pleading it is error, but the error will not be available unless the fact is preserved by a bill of exceptions. McKenney v. People, 2 Gilm., 540.

2 R. S., 408, § 411.

3 Curtis v. People, Breese, 197, 2d Ed., 256; Stone v. People, 2 Scam., 333; Townsend v. People, 3 Scam., 329; Connolly v. People, 3 Scam., 477.

4

Guykowski v. People, 1 Scam., 476; Winship v. People, 51 Ills., 296; Foster, 261; Rex v. Rockwood, Holt, 684; Weinzorpflin v. State, 7 Blackf., 186; Thomason v. State, 22 Ga., 499.

7 State v. Rickey, 4 Halst., 293; Wickwire v. State, 19 Conn., 477; Com. v. Church, 1 Barr, 105; Broward v. State, 9 Fla., 422; Holloway v. Freeman 22 Ills., 201; Rowan . Taylor, 1 Pin. Wis., 235; Dutel, v. State, 4 Greene Iowa, 125.

8

Holloway v. Freeman, 22 Ills., 201; Cruikshank v. Brown, 5 Gilm., 77; Schoonhoven v. Gott, 20 Ills., 46; Reaugh v. McConnell, 36 Ills., 373; Windett v. Hamilton, 52 Ills., 180; State v. Hensley, 7 Blackf., 324; McNab v. Bennett, 66 Ills., 157.

ous authorities holding that the facts outside of the record making an indictment defective may be made to appear by affidavit' or the admission of the prosecuting attorney.2

§833. Cases Enumerated.—A motion to quash is the proper and only remedy where the indictment omits to state that it was found upon the "oath" of the grand jury, or where the name of the prosecutor is not indorsed on the indictment when required by the statute; or where the names of the witnesses on whose evidence the indictment was found are not indorsed thereon; or where there was an irregularity in impaneling the grand jury; or where there is not sufficient certainty in the allegations of the count or indictment; or where a fact appears by way of recital and not by positive averment; or where the allegations in a count are repugnant, that is, contradict each other; or where the count is bad for duplicity.10 An indictment or count may be quashed on motion if not in the name and by the authority of the People of the State of Illinois," or if it does not conclude "against the same People of the State of Illinois";12 or if the words "A true bill," signed by the foreman of the grand jury, are not

'1 Bish. Cr., P. § 763; Reg. v. Hearn, 9 Cox C. C., 433, 436; State v. Hor. ton, 63 N. C., 595; Reg. v. Stockley, 2 Gale & D., 728; Stone v. People, 2 Scam., 333; Norris House v. State, 3 Greene Iowa, 513.

21 Bish. Cr. P., § 763; Rex v. Pewterus, 2 Stra., 1026.

437.

4

Curtis v. People, Breese, 197, 2d Ed., 353; State v. Ostrander, 18 Iowa,

2 R. S., 408, § 409; Verzain v. People, 40 Ills., 397; Winship v. People, 51 Ills., 296.

5

McKinney v. People, 2 Gilm., 540, 552.

Stone v. People, 2 Scam., 338; Dutel v. State, 4 Greene Iowa, 125; Dixon v. State, 4 Greene Iowa, 381; contra, State v. Hensley, 7 Blackf., 324. 'Stone v. People, 2 Scam., 338.

Townsend v. People, 3 Scam., 326.

State v. Johnson, 5 Jones N. C., 221.

10 State v. Brown, 8 Humph., 89; People v. Shotwell, 27 Cal., 394; Shafer v. State, 26 Ind., 191; Simons v. State, 25 Ind., 331; Com. v. Tuck, 20 Pick., 361.

"Whitesides v. People, Breese, 4, 2d Ed., 21; Donnelly v. People, 11 Ills., 552; Wright v. People, 15 Ills.. 417; Wright v. People, 59 Ills., 94. "U. S. v. Crittenden, Hemp, 61; U. S. v. Lemmons, Hemp, 62.

indorsed on the indictment;' or if the indictment2 or count3 does not allege facts sufficient to constitute a crime; but according to some of the decisions, neither the indictment nor count should be quashed on motion in a doubtful case, for in such case the court should require the defendant to demur." All of these objections, except that the indictment or count does not allege facts sufficient to constitute a crime, are waived by pleading and going to trial. The motion to quash the indictment, like a demur, must distinctly specify wherein the indictment is insufficient."

§834. As to the Discretion of the Court in Granting a Motion to Quash an Indictment.-It has been held that the granting of a motion to quash an indictment for insufficiency was in the discretion of the court," and that therefore error does not lieon its refusal. But the rule is otherwise in this state.10

$835. The Arraignment consists in calling the prisoner to the bar by his name, commanding him to hold up his hand, reading over to the accused the indictment and asking him whether he is guilty or not guilty of the offense therein

1 Nomaque v. People, Breese, 109, 2d Ed., 145; Gardiner v. People, 3 Scam., 85; State v. Freeman, 13 N. H., 488; Dutel v. State, 4 Greene Iowa, 125; Hughes v. State, 4 Iowa, 554.

21 Bish. Cr. P., § 772, Doug., 253; Com. v. Clark, 6 Grat., 675; People v. Eckford, 7 Cowen, 535; Com. v. Huff, 14 Grat., 648; State v. Beard, 1 Dutch., 384; State v. Robinson, 9 Foster N. H., 727; Rex v. Burket, Andr., 230; R. v. Simon, 1 Bur., 516.

Jones v. State, 6 Humph., 435; State v. Woodard, 21 Mo., 265; State v. Wishon. 15 Mo., 503; King v. State, 10 Texas, 281; Scott v. Com., 14 Grat,, 687.

1 Whart. Cr. L., § 519; Com. v. Eastman, 1 Cush., 189; Respublica v. Cleaver, 4 Yeates, 69; State v. Smith, 1 Murphy, 713; People v. Eckford, 7 Cowen, 535.

State v. Potter, 28 Iowa, 554.

Hughes v. State, 4 Iowa, 554; State v. Axt, 6 Iowa, 511.

'State v. Maurer, 7 Iowa, 406.

* 1 Whart. Cr. L., § 519; People v. Eckford, 7 Cowen, 535.

* Com. v. Eastman, 1 Cush., 189; State v. Conrad, 21 Mo., 271; State v. Putnam, 38 Me., 296.

10 Guykowski . People, 1 Scam., 476; Conolly v. People, 3 Scam., 474; Winship. People, 51 Ills., 296; Whitesides v. People, Breese, 4, 2d Ed., 21; Fairlee v. People, 11 Ills., 4.

2

charged against him.' The indictment is usually read to the prisoner, though a copy of the indictment has previously been furnished to him. But it is competent for the prisoner with the consent of the court to waive the reading; and if thus waiving he pleads to the indictment, the transaction will be equivalent to a formal arraignment and plea. If, however, no plea is entered by the accused or his counsel, there is no issue, and without an issue there is nothing to be tried, in which case on conviction, it is error to sentence the accused.' The arraignment and plea in cases of felonies are essential to the formation of the issue, but in cases of misdemeanor punishable only by a fine, the plea of not guilty may be entered either by the accused or his counsel without arraignment. A plea by an attorney of a party indicted for a felony, filed without the arraignment of the accused in his absence is a nullity. In cases of felony in all proceedings, subsequent to the arraignment, the accused must appear in person; and the record must show such appearance. If it does not appear in such cases from the record that the accused was furnished with a copy of the indictment and a list of the witnesses, and required to plead before he was placed on trial, the judgment will be reversed.8

§ 836. Plea. The statute provides that "upon the arraignment of the prisoner, it shall be sufficient without complying

'1 Bish. Cr. P., § 728; 1 Arch. C. P. & Pl., 350.

Rex v. Hensey, 1 Bur., 642.

1 Bish. Cr. P., 733; Goodin v. State, 16 Ohio S., 344; Washburn v. People, 10 Mich., 372; Johnson v. People, 22 Ills., 314.

Johnson v. People, 22 Ills., 317; Douglass v. State, 3 Wis., 820; Powell e. U. S., 1 Morris, 17; Sartorius v. State, 24 Missis., 602; Aylesworth v. Pcople, 65 Ills., 301; State v. Hardie, 3 Murphy, 232.

1 Bish. Cr. P., § 268; Johnson v. People, 22 Ills., 317; Ex parte Tracy, 25 Vt., 93; Warren v. State, 19 Ark., 214; U. S. v. Leckie, Sprague, 227; U. S. v. Mayo, 1 Curt. C. C., 433.

McQuillen v. State, 8 Sm. & M., 587; Sperry's Case, 9 Leigh, 623; Sailer v. State, 1 Harring., 357; Dunn v. Com., 6 Barr, 384.

71 Arch. C. P. & Pl., 351; Sperry's Case, 9 Leigh, 623; Sailer v. State, 1 Harring., 357; Dunn v. Com., 6 Barr, 384.

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McKinney v. People, 2 Gilm., 540; Yundt v. People, 65 Ills., 374; contra, State v. Winstrand, 37 Iowa, 110.