§ 312. How defendant may answer indictment. In answer to the indictment. the defendant may either move the court to set the same aside, or may demur or plead thereto. New. People v. Petrea (1883), 92 N. Y. 128, 30 Hun 112; People v. Rutherford (1900), 47 App. Div. 212, 62 N. Y. Supp. 224; People v. Clements (1887), 5 Crim. Rep. 294; People v. Equitable Gas Light Co. (1888), 6 Crim. Rep. 190; People v. Clark (1891), 8 Crim. Rep. 169, 14 N. Y. Supp. 643; People ex rel. Benton v. Ct. of Sessions (1892), 8 Crim. Rep. 357, 46 St. Rep. 256, 19 N. Y. Supp. 509; People v. Bissert (1902), 71 App. Div. 118, 122, 75 N. Y. Supp. 630; People v. Klaw (1907), 53 Misc. 159, 104 N. Y. Supp. 482. CHAPTER V. SETTING ASIDE THE INDICTMENT. SECTION 313. Indictment, when set aside on motion. 314. Defendant, when precluded from objecting to indictment in any other manner. 315. Motion, when heard. 316. If denied, defendant must immediately demur or plead. 317. If granted, defendant discharged, unless the case be submitted to the same or another grand jury. 318. Effect of order for resubmission. 319. When new indictment not found. 320. Order to set aside indictment, no bar to another prosecution. § 313. Indictment, when set aside on motion. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: 1. When it is not found, indorsed and presented as prescribed in sections two hundred and sixty-eight and two hundred and seventytwo; 2. When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four. New. People v. Rutherford (1900), 47 App. Div. 212, 62 N. Y. Supp. 224; People v. Glen (1901), 64 App. Div. 173, 71 N. Y. Supp. 893; People v. Petrea (1882), 30 Hun 101, 112, 1 Crim. Rep. 203, 92 N. Y. 128; Grampp v. De Peyster (1894), 80 Hun 134, 29 N. Y. Supp. 1039; People ex rel. Benton v. Ct. of, etc. (1892), 46 St. Rep. 256, 19 N. Y. Supp. 509; Smith v. Town of Greenwich (1894), 61 St. Rep. 786, 30 N. Y. Supp. 56; People v. Lytle (1896), 74 St. Rep. 724, 40 N. Y. Supp. 153; People v. Brickner (1891), 15 N. Y. Supp. 528; People v. Clark (1891), 14 N. Y. Supp. 643; People v. Edward (1893), 25 N. Y. Supp. 480; People v. Bernardo (1883), 1 Crim. Rep. 244; People v. Clements (1887), 5 Crim. Rep 290, 297; People v. Haines (1888), 6 Crim. Rep. 101; People v. Price (1888), 6 Crim. Rep. 143; People v. Equitable Gas Light Co. (1888), 6 Crim. Rep. 190; People v. Vaughan (1897), 19 Misc. 299, 42 N. Y. Supp. 959, 11 Crim. Rep. 388; People v. Willie (1898), 23 Misc. 570, 52 N. Y. Supp. 808, 13 Crim. Rep. 255; People v. Winant (1898), 24 Misc. 362, 53 N. Y. Supp. 695; People v. O'Connor (1900), 31 Misc. Misc. 172; 15 Crim. Rep. 81, 66 N. Y. Supp. 191; People v. Kramer (1900), 33 Misc. 210, 15 Crim. Rep. 257, 68 N. Y. Supp. 383; People v. Scannell (1901), 36 Misc. 41, 72 N. Y. Supp. 449; People v. Farmer (1909), 194 N. Y. 251; People v. Sexton (1904), 187 N. Y. 511; People v. Borgstorm (1904), 178 N. Y. 257; People v. Glen (1903), 173 N. Y. 395, 398; Matter of Montgomery (1908), 126 App. Div. 82; People ex rel. Jerome v. Court of General Sessions (1906), 112 App. Div. 427, 98 N. Y. Supp. 557; People ex rel. Hummel v. Davy (1905), 105 App. Div. 598, 605, 607, 613, 94 N. Y. Supp. 1037; People v. Bissert, (1902), 71 App. Div. 118, 122, 75 N. Y. Supp. 630; People v. Phifer (1908), 59 Misc. 339, 112 N. Y. Supp. 285; People v. Glasser (1908), 60 Misc. 408; People v. Teal (1908), 60 Misc. 519; People v. Klaw 53 Misc. 159, 104 N. Y. Supp. 482; People v. Booth, (1907), 52 Misc. 343, 102 N, Y. Supp. 62; People v. Steinhardt (1905), 47 Misc. 252, 258, 93 N. Y. Supp. 1026; People v. Bills (1904), 44 Misc. 348, 89 N. Y. Supp. 1091; People v. Sexton, (1904), 42 Misc. 312, 86 N. Y. Supp. 517; People v. Scannell (1902), 37 Misc. 345, 356, 75 N Y. Supp. 500; People v. Montgomery (1901), 36 Misc. 326, 327, 73 N. Y. Supp. 535; People v. Steinhardt (1905), 47 Misc. 252, 260, 93 N. Y. Supp. 1026; People v. Guenther (1909), 65 Misc. 150; Matter of Baldwin, (1909), 65 Misc. 153. § 314. Defendant, when precluded from objecting to indictment in any other manner. If the motion to set aside the indictment be not made, the defendant is precluded from afterward taking the objections mentioned in the last section. New. § 315. Motion, when heard. The motion to set aside an indictment must be heard at the time of the arraignment, unless, for good cause, the court postpone the hearing to another time. New. Grampp v. DePeyster (1894), 80 Hun 134; 29 N. Y. Supp. 1039; Smith v. Town of Greenwich (1894), 61 St. Rep. 786, 30 N. Y. Supp. 56; People v. Gas Light Co. (1888), 6 Crim. Rep. 190; People v. Phifer (1908), 59 Misc. 339, 112 N. Y. Supp. 285. § 316. If denied, defendant must immediately demur or plead. If the motion be denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto. New. § 317. If granted, defendant discharged, unless the case be submitted to the same or another grand jury. ant, if in custody, be discharged therefrom, or if under bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him, unless the court direct that the case be re-submitted to the same or another grand jury. New. People v. Clements (1887), 5 Crim. Rep. 289, 299; People v. Rosenthal (1910), 197 N. Y. 394, 401. § 318. Effect of order for re-submission. If the court direct that the case be re-submitted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or if already admitted to bail, or money have been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment. New. People v. Clements (1887), 5 Crim. Rep. 298; People v. Richards (1887), 5 Crim. Rep. 370; People v. Gas Light Co. (1888), Crim. Rep. 190. § 319. When new indictment not found. 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 three hundred and seventeen. New. § 320. Order to set aside indictment no bar to another prosecution. An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offense. New. People v. Rosenthal (1910), 197 N. Y. 394, 401 SECTION 321. Only pleading for defendant, is demurrer or plea. 322. Demurrer or plea, when put in. 323. Grounds of demurrer. 324. Demurrer, how put in, and its form. 325. When heard. 326. Judgment on demurrer. 327. If allowed, judgment a bar to another prosecution, unless direction that the case be re-submitted to the same or another grand jury. 328. If resubmission not ordered, defendant discharged. 329. Proceedings, if re-submission ordered. 330. If demurrer disallowed, defendant may be permitted to plead ; when he must do so, and effect of his omission. 331. When objections, forming ground of demurrer, may be taken at the trial, or in arrest of judgment. § 321. Only pleading for defendant, is demurrer or plea. The only pleading on the part of the defendant is either a demurrer or a plea. New. People v. Conroy (1884), 97 N. Y. 62; People v. Ryland (1884), 97 N. Y. 128; People ex rel. Schneider v. Hayes (1905), 108 App. Div. 6, 8, 95 N. Y. Supp. 471; People ex rel. Hummel v. Davy (1905), 105 App. Div. 598, 613, 94 N. Y. Supp. 1037; People v. Bissert (1902), 71 App. Div. 118, 137, 75 N. Y. Supp. 630; People v. Scannell (1901), 36 Misc. 483, 486, 73 N. Y. Supp. 1067. § 322. Demurrer or plea, when put in. Both the demurrer and the plea must be put in, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose. New. Fanning v. Supreme Council (1991), 34 Misc. 258, 69 N. Y. Supp. 622; People v. Petrea (1882), 1 Crim. Rep. 215; People v. Wendell (1908), 128 App. Div. 438, 112 N. Y. Supp. 837. § 323. Grounds of demurrer. The defendant may demur to the indictment, when it appears upon the face thereof: |