As I am unable to concur in the opinion of Mr. Chief Justice Pope, I will state briefly the grounds of my dissent. *Page 45
The defendant was convicted in the city court of Charleston, for firing a gun, in violation of the city ordinance, and was sentenced by the recorder to pay a fine of ten dollars. He appealed to the Circuit Court on the ground that the ordinance was unconstitutional; the appeal was sustained and he was discharged, whereupon the State appealed.
We are met at the threshold with the question, whether the State had the right, in this case, to appeal? Section 57 of the Criminal Code provides that, "every objection to any indictment for any defect apparent upon the face thereof, shall be taken by demurrer or on motion to quash such indictment, before the jury shall be sworn, and not afterwards." The defendant had the right, before proceeding to trial upon the merits of the case, to raise the objection that the proceeding was fatally defective, in that the statute under which he was indicted was unconstitutional, either by demurrer or on motion to quash the indictment, but not afterwards. (He, however, did not exercise this right.)
He likewise had the right to waive this mode of objection to the constitutionality of the statute, and to raise this question when put upon trial on the merits of the case.
Mr. Chief Justice Pope contends that the State has the right to appeal from an order quashing an indictment, and that the defendant in this case, in effect, demurred to the indictment. There is no doubt as to the soundness of the proposition, that the State has the right to appeal from an order quashing an indictment for the reason that a defendant cannot properly be said to have been in jeopardy until he is placed on trial upon a valid indictment. A motion to quash is preliminary in its nature, and does not involve the merits.
But we cannot accede to the view that the objection interposed by the defendant as to the constitutionality of the statute, was, in effect, a demurrer to the indictment. In the first place, the effect of the proposition that the defendant, in effect, demurred to the indictment, is to require the *Page 46 defendant, at the instance of the State, to rely upon a mode of bringing this question to the attention of the Court, which he had waived, and which he could not thereafter insist upon, in order that the State might have the right to appeal.
And in the second place, it is apparent that the defendant was placed in jeopardy when he went to trial without making a motion to quash, or without demurring to the indictment, as such trial involved the merits of the case.
The order of the Circuit Judge discharging the defendant upon hearing the appeal from the sentence imposed by the recorder was, therefore, in effect, an acquittal, from which the State could not appeal. State v. Ivey, 73 S.C. 282.