State v. Mitchell

Mates, J.,

delivered the opinion of the court.

Sections 1426 and 1427, Code of 1906, provide the only ways of raising objections to the legal sufficiency of indictments. By section 1426, if the defect appears on the face of the indictment, the objection must be raised by demurrer. . By section 1427, if the defect is dehors the face, the objection must be made by motion to quash. Since the indictment was not challenged in either of the modes required by the statutes above referred to, the quashing of the indictment was wholly unauthorized. The legal sufficiency of the indictment could not be called in question under the pleading filed by the defendant, as the plea was addressed to a wholly different question. The so-called plea in bar was not such in any true sense, and the demurrer thereto should have been sustained, and the plea stricken out. The allegations of fact contained in the so-called plea in bar are, at most, mere allegations of fact which the defendant relies on to to prove his innocence of the crime charged; but if it is conceded that the facts alleged in the plea, if true, should acquit defendant, such facts must he proven, as would any other fact showing innocence, and would not invalidate the indictment as a matter of law. If it be conceded that, on the establishment of the facts alleged in the plea, the innocence of the party would follow as a matter of law, the court below, on overruling the demurrer filed thereto by the state, should not have discharged the prisoner and quashed the indictment for the double reason that the demurrer only admitted the facts for the purpose of testing the legal question raised by it, and the indictment itself stood unchallenged. If the defense sought to be established by the facts of the plea constitute a valid defense in law, all that is alleged in it is admissible under a general plea of not guilty, and the plea was therefore bad. In section 742, Bishop on Criminal Procedure, is clearly defined the function of a plea in bar, and the circumstances authorizing this plea to be interposed are pointed out.

Such plea as is here sought to be given the effect of a plea in bar is a novelty in criminal procedure, as far as we can discover and amounts to no plea. The court below found, as a matter of law, that the facts alleged in the plea constituted a defense to the charge. It further proceeds to declare, after so finding, that the demurrer filed to same admits the facts, and, the demurrer being overruled, that these unproven allegations of fact contained in the plea entitle the prisoner to a discharge; and the court then extends the effect of the plea still further, and gives it the effect of a demurrer or motion to quash, and direct that the indictment be quashed. In other words, on a plea of which the most that can be said is that it is in effect a plea of not guilty, the defendant is acquitted and discharged on the mere allegations in the pleadings, and the indictment held legally insufficient. Such a result as this, if sanctioned; would introduce into the criminal law a new and dangerous practice, not approved of by any authority that counsel has cited us to or that we can find.

The judgment is reversed, the indictment reinstated, cause remanded, and prisoner held to await further action of the court.

Reversed.