If the defendant demurs to sueh a replication, the court may grant judgment against, him, if his plea in abatement was originally demurrable. Otherwise, it has been held that any defects in the plea are waived by the replication.48

§ 518. Plea of Nolo Contendere. A plea of nolo contendere is one by which a defendant forgoes his right to make a defense without acknowledging his guilt.1

It has been said not to be a plea in the strict sense of that term as used in the criminal law, but to be in effect a plea of guilty to every essential element of the offense pleaded and warrants the accused's conviction thereof without evidence, although the conviction cannot be used against him in any other case. This plea can be accepted only by permission of the court. It has been said to be in some respects in the nature of a compromise between the government and the accused."

It has been said that it applies only to offenses punishable by a fine alone.6

Notwithstanding such a plea, the defendant may have the question whether the indictment charges an offense determined upon a writ of error."

Such pleas have been accepted in the Seventh and the Eighth Circuit. In the Second Circuit, it was never the custom to accept them before the year 1911. In the Circuit Court

47 Reeves v. State, 29 Fla. 527, 10 So. 901; Commonwealth v. Hazlett, 16 Pa. Superior Ct. 534; State v. Wills, 11 Humphries (Tenn.) 222; 12 Cyc. 360.

48 State v. Ligon, 7 Porter (Ala.) 167; 12 Cyc. 360.

§ 518. 1 Tucker v. U. S., C. C. A., 196 Fed. 260. See note 41 L.

R. A. (N. S.) 70.

2 Ibid.

3 U. S. v. Lair, C. C. A., 195 Fed. 47, 52. See U. S. v. Hartwell, 3 Cliff, 221, 26 Fed. Cas. No. 15,318.

4 Tucker v. U. S., C. C. A., 196 Fed. 260.

5 Hocking Valley Ry. Co. v. U. S., C. C. A., 210 Fed. 735.

6 Tucker v. U. S., C. C. A., 196

Fed. 260, 266, where the court below, after a plea of nolo contendere was filed, took evidence and sentenced the defendant to fine and imprisonment; whereupon the judgment was reversed and the cause remanded, with directions to accept or refuse acceptance of the plea and proceed thereupon in conformity with law. A most extraordinary decision. Contra, U. S. v. Lair, C. C. A., 195 Fed. 47.

7 Hocking Valley Ry. Co. v. U. S., C. C. A., 210 Fed. 735.

8 Tucker v. U. S., C. C. A., 196 Fed. 260.

9 U. S. v. Lair, C. C. A., 195 Fed. 47.

for the Southern District of New York, in the Steel Wire Pool Cases, a judge from another circuit, who had been assigned to try the cases, and who, for his judicial misconduct was afterwards impeached, accepted the plea against the protest of the District Attorney. A judge of the District Court for that district, shortly thereafter, said that he felt bound to follow this ruling by accepting the plea from another defendant indicted for acts connected with the same transactions, but that this action should not be regarded as a precedent.10

§ 519. Plea of Pardon. By the Constitution the President "shall have Power to grant Reprives and Pardons for Offenses against the United States, except in Cases of Impeachment."1 By the Criminal Code, "Whenever, by the judgment of any court or judicial officer of the United States, in any criminal proceeding, any person is sentenced to two kinds of punishment, the one pecuniary and the other corporal, the President

10 N. Y. Sun, Sept. 21, 1911. Hough, J.: "During my time there have been quite a number of applications made for the plea of non vult in this district. So far as I know after inquiry of the comparatively few persons who have been acquainted with these courts longer than I have, it is not within the memory of living man that the plea of non vult has been accepted in New York. The reason for that is, I think, quite obvious on an examination of two or three of our State statutes. It is now many years since pleading on the criminal side has been regulated by statute in New York, and therefore the common law plea of non vult has not been accepted in the State court. It is of such common occurrence that on the substantive matter contained in any indictment a charge might be brought in the Federal court or in the State courts that it would be most unjust to have a kind of plea acceptable in the Federal court

which was unlawful in the State court, especially when that particular style of plea is always and has always been from time immemorial within the discretion of the trial court.

Therefore I wish it to be understood, so far as I am concerned, that the acceptance of the plea of non vult in this case is based upon its acceptance by the Judge who first heard it, for there is no reason here that I can see to change what has been done in this particular cause, but this action is not to be regarded as a precedent in my administration of the criminal law.'' Upon the acceptance of the plea in each case the former judge imposed upon the defendants, fines which District Attorney Wire considered inadequate to the crimes. The proceedings are fully described in Shield's Federal Courts and Practice, 522-525.

§ 519. 1 Art. II, Section 2.

shall have full discretionary power to pardon or remit, in whole, or in part, either one of the two kinds, without, in any manner, impairing the legal validity of the other kind, or of any portion of either kind, not pardoned or remitted."2

The word "pardon" as thus used in the Constitution has the same meaning which prevailed in England and the Colonies when the Constitution was adopted.3

"A pardon is an act of grace, proceeding from the power entrusted with the execution of the law which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended."4

Notwithstanding this provision of the Constitution Congress has the power to pass acts of general amnesty. A pardon differs from an amnesty in that the amnesty overlooks the offense, the pardon remits punishment. An amnesty is usually addressed to classes, or communities. It is usually addressed to crimes against the sovereignty of a State, to political offenses. A pardon usually condones infractions of the peace of the State. An amnesty is usually a legislative act or the act of the President under "legislation, constitutional or statutory."6

A pardon is not effective until it is communicated to the individual pardoned," and by him accepted. The assertion of a right dependent upon a pardon is affirmative evidence of its acceptance. An acceptance by a man who is lawfully impris oned is not void as made under duress.1

2

10

A pardon may be conditional. It will then not take effect.

327, St. at L.

3 Re Wells, 18 How. 307, 15 L. ed. 421.

4 Marshall, C. J., in U. S. v. Wilson, 7 Peters 150, 160, 8 L. ed. 640.

5 Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. ed. 819. 6 Burdick v. U. S., 236 U. S. 79, 94.

7 U. S. v. Wilson, 7 Peters 150, 160, 8 L. ed. 640.

8 U. S. v. Klein, 13 Wall. 128, 20 L. ed. 519; Armstrong's Foundry, 6 Wall. 766, 18 L. ed. 882; Carlisle v. U. S., 16 Wall. 147, 21 L. ed. 426; Burdick v. U. S., 236 U. S. 79, 95.

9 Re Wells, 18 How. 307, 15 L. ed. 421.

10 Burdick v. U. S., 236 U. S. 79, 87.

11 U. S. v. Wilson, 7 Peters 150, 160, 8 L. ed. 640; Re Wells, 18 How.

until the conditions have been satisfied.13 The convict of a consular court sentenced to death for murder, by the acceptance of a pardon conditioned that he be imprisoned for life in a penitentiary, is bound by the condition, provided at least that the court had jurisdiction.14 The recital therein, that it was requested by the District Attorney in order to restore the competency of a witness, does not restrict subsequent language stating that the pardon is full and unconditional.15

A pardon blots out the offense.16 It blots out of existence the guilt so that in the eyes of the law the offender is as innocent as if he had not committed the offense pardoned.17 It removes all penalties 18 and disabilities attached to the offense or to conviction thereof and restores the defendant to his civil rights, 19 but does not affect rights previously vested in others by reason of his conviction.20 It does not extend the Statute of Limitation, 21 nor deprive Congress of the power to make proof of innocence of the offense pardoned a condition precedent to the removal of the bar of such statute against a claim.22 A pardon restores a convict's competency as a witness.23 It prevents a witness who has accepted it from pleading his constitutional immunity to a question which might disclose his former guilt.24 If the witness refuses to accept the pardon he may still plead his

307, 15 L. ed. 421; U. S. v. Padelford, 9 Wall. 531, 19 L. ed. 788; U. S. v. Klein, 13 Wall. 128, 20 L. ed. 519; Re Ross, 140 U. S. 453, 480, 35 L. ed. 581.

13 U. S. v. Klein, 13 Wall. 128, 20 L. ed. 519.

14 Re Ross, 140 U. S. 453, 480, 35 L. ed. 581.

15 Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. 292, 35 L. ed. 1077.

16 U. S. v. Padelford, 9 Wall. 531, 19 L. ed. 788; U. S. v. Klein, 13 Wall. 128, 20 L. ed. 519; Armstrong v. U. S., 13 Wall. 154; 20 L. ed. 614. 17 Ex parte Garland, 4 Wall. 333, 18 L. ed. 366.

18 U. S. v. Padelford, 9 Wall. 531, 19 L. ed. 788; Pargoud v. U. S., 13 Wall. 156, 20 L. ed. 646; Carlisle

.

v. U. S, 16 Wall. 147, 21 L. ed. 426; Young v. U. S., 97 U. S. 39, 24 L. ed. 992.

19 Ex parte Garland, 4 Wall. 333, 18 L. ed. 366.

20 Confiscation Cases, 20 Wall. 92, 22 L. ed. 320; Semmes v. U. S., 91 U. S. 21, 23 L. ed. 193; Wallach v. Van Riswick, 92 U. S. 202, 23 L. ed. 473; Chaffraix v. Shiff, 92 U. S. 214; Knote v. U. S., 95 U. S. 149, 24 L. ed. 442.

21 Haycraft v. U. S., 22 Wall. 81, 22 L. ed. 738.

22 Austin v. U. S., 155 U. S. 417, 15 Sup. Ct. 167, 39 L. ed. 206. 23 Logan v. U. S., 144 U. S. 263, 36 L. ed. 429.

94.

24 Burdick v. U. S., 236 U. S. 79,

privilege.25 The differences between legislative immunity and a pardon in this respect are substantial. "The latter carries an imputation of guilt; acceptance a confession of it. The former. has no such imputation or confession. It is tantamount to the silence of the witness. It is non-committal. It is the unobtrusive act of the law giving protection against a sinister use of his testimony, not like a pardon requiring him to confess his guilt in order to avoid a conviction of it." 26

A pardon to be available as a defense should be specially pleaded.27 Unless granted pending the proceedings, it cannot be considered when raised for the first time upon a motion in arrest of judgment.28 A Territorial case holds that the defense of pardon may be set up by a motion to dismiss the indictment, after a plea of not guilty.29

§ 520. Plea of Former Jeopardy or of Former Acquittal or Conviction. By the Fifth Amendment, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

It has been held that the prohibition of a prosecution because of former jeopardy is only a variant of the fundamental principles of justice and expediency which lie behind the doctrine of res adjudicata. The Amendment does not abrogate the doctrine of res adjudicata as applied to criminal prosecutions.2 The Amendment applies to prosecutions for misdemeanors as well as for felonies. It applies to summary proceedings for the punishment of the crime as well as to those begun by indictment. It has no application to proceedings for the deportation of aliens.5

A defendant has not been placed in former jeopardy, if he has not previously been put on trial upon any issues of fact. It

25 Ibid.

26 Ibid.

27 U. S. v. Wilson, 7 Peters 150, 160, 8 L. ed. 640.

28 U. S. v. Wilson, 7 Peters 150, 160, 8 L. ed. 640.

29 Territory v. Richardson, 9 Okla. 579, 60 Pac. 244, 49 L. R. A. 440. $ 520. 1 Harvard Law Review, Feb., 1917.

2 U. S. v. Oppenheimer, 242 U. S. 85.

3 Ex parte Lange, 18 Wallace 163, 21 L. ed. 87.

4 Wenyss v. Hopkins, L R., 10 Q. B. 378, 381.

5 Sire v. Burkshire, 185 Fed. 567. 6 Taylor v. U. S., 207 Fed. 120; People v. Stanton, 84 Misc. (N. Y.) 101, 146 N. Y. Supt. 862.