་ for plea says, as to the force and arms and whatever is against the peace in said first and second counts in said indictment mentioned, and the wounding therein supposed to be done, he is not guilty thereof in manner and form as he is charged therewith in said indictment, and of this he puts himself upon the country. And as to the residue of the offences charged in said indictment, and as to the assaulting, beating, bruising, evil treating, and forcibly and with a strong hand depriving of the care, custody, and keeping and possession of goods and chattels, the said K. says that said commonwealth ought not to prosecute and charge him therefor, because he says that said D. D. B., in said indictment mentioned, and one S. F. C., before and on the said second day of October last, and at the time when said offence is supposed to have been committed, were lawfully possessed of a certain shop in Congress Street, in said Boston, and of certain goods and chattels then and there in said shop, being the same goods and chattels in said second count in said indictment mentioned, which said goods and chattels were then and there the proper goods and chattels of said B. and C., and being so possessed and seised thereof, the said T. I. S., just before the said time, when, etc., to wit, on said second day of October, was unlawfully in said shop, and with force and arms making a great noise and disturbance, and at said time, when, etc., stayed and continued therein making such noise and disturbance, without leave or license, and against the will of said B. and C., and then and there, with force and arms, and with a strong hand, kept said B. and C. out of possession of said shop and of said goods and chattels, and then and there, and during a long time, disturbed said B. and C. in the use and enjoyment of said shop and of said goods and chattels, and greatly annoyed said B. and C. in the peaceable possession and enjoyment of said shop and of said goods and chattels, and thereupon the said B. then and there requested said S. to cease from making his said noise and disturbance, and to go and depart from said shop, and to give up and relinquish said goods and chattels to said B. and C., the lawful owners thereof, which S. then and there refused to do. Whereupon the said B. did specially pray and request said K. to aid and assist him the said B. in the defence of the possession of said shop and of said goods and chattels; and thereupon said B. and K., in defence of said possession of said shop and of said goods and chattels, gently laid their hands upon said S. in order to remove him from said shop, and did then and there remove said S. from said shop and from said goods and chattels, as they lawfully might do for the cause aforesaid, doing the said S. no unnecessary harm or injury; all which are the same assaulting, beating, bruising, and evil treating, and with force and a strong hand depriving said S. of the care, custody, and possession of said goods and chattels in said first and second counts mentioned, and therein supposed to be done; and this said K. is ready to verify; wherefore he prays judgment of said indictment, whether said commonwealth ought or can prosecute him for the premises, and that he may be discharged thereof without day. (1160) Replication. A. K. And now J. T. A., the attorney of said commonwealth, here in court agrees to the above reservation as to so much of said plea as that whereof the said A. puts himself on the country, for the commonwealth doth the like. And as to the rest and residue of said plea, he says, that the said commonwealth ought not, by reason of anything therein contained, to be precluded from prosecuting the said A. for the several matters and things in said indictment charged upon him; because he says that at the time in said indictment alleged, he the said A. committed the several assaults, batteries, and trespasses in said indictment set forth, of his own wrong, and without any such cause as he hath in pleading alleged; and this he prays may be inquired of by the country. J. T. A., Attorney, etc. A. K. And the said K. doth the like. 713 CHAPTER II. DEMURRERS. (a) (1161) Demurrer to an indictment or information. (1162) Joinder to same. (1163) Demurrer to a plea in bar. (1164) Joinder to same. (1165) Demurrer to plea of autrefois acquit. (1166) Joinder in demurrer to same. (1161) Demurrer to an indictment or information.(b) And the said J. S., in his own proper person, cometh into court here, and having heard the said indictment (or information) read, says, that the said indictment (or information) and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that he the said J. S. is not bound by the law of the land to answer the same; and this he is ready to verify; wherefore, for want of a sufficient indictment (or information) in this behalf, the said J. S. prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment (or information) specified. (1162) Joinder to same.(c) And J. N., who prosecutes for the said state in this behalf, says, that the said indictment, and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law to compel the said J. S. to answer the same; and the said J. N., who prosecutes as aforesaid, is ready to verify and prove the same, as the court here shall direct and award; wherefore, inasmuch as the said J. S. hath not answered to the said indictment, nor hitherto in any man (a) See Wh. Cr. Pl. & Pr. § 400. ner denied the same, the said J. N., who prosecutes as aforesaid, prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified. (The like form, mutatis mutandis, may be adopted in the case of informations.) (1163) Demurrer to a plea in bar.(d) And J. N., who prosecutes for the said state in this behalf, ast to the said plea of the said J. S., by him above pleaded, says that the same, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the said state from prosecuting the said indictment against him the said J. S.; and that the said state is not bound by the law of the land to answer the same; and this he the said J. N., who prosecutes as aforesaid, is ready to verify; wherefore, for want of a sufficient plea in this behalf, he the said J. N. for the said state prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified. (1164) Joinder to same.(e) And the said J. S. says, that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude the said state from prosecuting the said indictment against him the said J. S.; and the said J. S. is ready to verify and prove the same, as the said court here shall direct and award; wherefore, inasmuch as the said J. N., for the said state, hath not answered the said plea, nor hitherto in any manner denied the same, the said J. S. prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment specified. (d) Arch. C. P. 103. See Wh. Cr. Pl. & Pr. § 400. et seq. A demurrer to a plea in abatement is in the same form, except that it concludes with praying "judgment, and that the said indictment may be adjudged good, and that the said J. S. may further answer thereto," etc. (e) Arch. C. P. 103. The joinder is the same if the demurrer be to a plea in abatement, except that it concludes with praying "judgment, and that the said indictment may be quashed," etc. (1165) Demurrer to plea of autrefois acquit.(f) Aud J. K., who prosecutes for the said state in this behalf, cometh and saith, that for and notwithstanding anything in the said plea of the said J. A. and J. V., by them above pleaded, the said (state) ought further to prosecute them the said J. A. and J. V., by reason of the premises in the said indictment to which the said plea is above pleaded, mentioned; because he saith that the said plea, and the matters therein contained, are not sufficient in law to bar the said state from further prosecut ing them the said J. A. and J. V., by reason of the premises in the said indictment to which the said plea is above pleaded, mentioned; and this the said J. K. is ready to verify; wherefore he prays judgment, that the said state may further prosecute them the said J. A. and J. V., by reason of the premises in the said indictment to which the said plea is above pleaded, mentioned; and that the said J. A. and J. V. may answer over to the same indictment. (1166) Joinder in demurrer to same. And the said J. V. and J. A., being now here as aforesaid, in their proper persons, under the custody of the said sheriff of the county of Middlesex, say, that the said plea of them the said J. V. and J. A. in form aforesaid above pleaded, and the matter therein contained, are sufficient in law to bar the said state from further prosecuting them the said J. V. and J. A., by reason of the premises in the said indictment to which the said plea is above pleaded, mentioned; and this they are ready to verify, etc.; wherefore, as before, they pray judgment, and that the said state may be barred from further prosecuting, by reason of the premises mentioned in the said indictment, to which the said plea of them the said J. V. and J. A. is above pleaded; and that they may be dismissed this court without day, etc. (f) See Stark. C. P. 474; see supra, § 1150, note. 716 |