Defendants as sheriff and undersheriff were charged with collecting illegal fees from Missoula County by falsely representing expenses for boarding Missoula County prisoners.
The information contained 13 separate counts, each setting forth a monthly claim for a different month, and each giving an itemized list of named vagrants and the date when each was alleged to have been served meals by defendants and the number of days or fraction of days for which a charge was made for such board. Each count alleged that the part of each *502claim made up of these items for alleged vagrants “had not, nor had any portion thereof been furnished Missoula County prisoners. That the alleged prisoners aforesaid, if such named inmates of the county jail in Missoula County, Montana, ever did exist, were not prisoners of Missoula County at the time or times claimed. That there are no records nor files in Missoula County courts showing that a complaint was nor had ever been filed against the alleged prisoners aforesaid on the date or dates claimed; that in fact there is nothing of record in Missoula County courts showing the alleged prisoners aforesaid were, nor had ever been committed to the said jail under process of Missoula County courts, discharged or otherwise, on the date or dates claimed.”
Defendants on February 26, 1954, pleaded not guilty. Trial was set for April 5th, and on that day, but before selecting a jury, the state challenged the jury panel. The state’s motion was sustained and the case reset for trial April 8th. Defendants then asked leave to withdraw their pleas in order to attack the information by demurrer. This motion was granted and each defendant filed a separate, but identical, demurrer, on grounds both general and special. The court sustained the demurrer on the general ground and overruled it as to the other grounds. The state declined to amend. Judgment of dismissal followed. The state has appealed from the judgment.
The state contends that the court erred in granting leave to withdraw the pleas of not guilty. The general rule is that whether a plea of not guilty may be withdrawn in order to attack the information by demurrer is a question addressed to the discretion of the court. 22 C.J.S., Criminal Law, section 421(d), page 648. But appellant contends that nothing was shown by defendants to move the court’s discretion and hence that the court erred in allowing the plea to be withdrawn and the demurrer interposed.
“* * *■ where the ground of demurrer is that the indictment or information does not charge a crime, it is not improper to entertain the demurrer during the trial, nor is it prejudicial to *503refuse to permit the filing of the demurrer after commencement of the trial, since the objection may be raised at any time.” 42 C.J.S., Indictments and Informations, section 220, page 1219, note 96.
Some questions are waived by entering a plea but there is no waiver of the objection that the information fails to set forth facts sufficient to constitute a public offense. 42 C.J.S., Indictments and Informations, section 307, page 1337, and see R.C.M. 1947, section 94-6711; State v. Wehr, 57 Mont. 469, 188 Pac. 930; State v. Smith, 58 Mont. 567, 194 Pac. 131; State v. Fowler, 59 Mont. 346, 196 Pac. 992, 197 Pae. 847.
So far as the general ground of demurrer is concerned, the court did not abuse its discretion in permitting withdrawal of the plea of not guilty and the filing of the demurrer. Whether it was proper to permit other grounds to be raised by the demurrer after once entering a plea is not necessary to be decided here.
The court did not abuse its discretion in allowing the pleas to be withdrawn and the demurrers filed. In sustaining the demurrer the court’s minute entry recites that the demurrers were “sustained as to paragraph 1 of each of the demurrers and with particular reference to that portion of count 1 of the information concerning [here the court referred to the language of the information quoted above].” Paragraph 1 of each demurrer was “that the facts stated in the information as a whole do not constitute a public offense.” The same ruling was made as to each count of the information.
The state contends that the particular language of the information which we have quoted above should be treated as surplusage and that the information is good without it. We do not agree with the state’s contention in this respect.
The information charges that defendants presented for allowanee to the board of county commissioners a ‘ ‘ certain false and fraudulent monthly report concerning board furnished Missoula County prisoners.” This is a conclusion of law and is insufficient to state an offense unless accompanied by a state*504ment of facts upon which the charges of falsehood or fraud rest. State v. Hale, 129 Mont. 449, 291 Pac. (2d) 229.
The further allegations which we are now asked to treat as surplusage were designed to show wherein the claim was false and fraudulent. Are those allegations sufficient to show that the claim was false or fraudulent ? We think not. The information does not allege that the persons for whom board was charged were not confined in the Missoula County jail. It does not allege that they were not properly confined in jail. The charge that they were not prisoners of Missoula County does not amount to a charge that they were not “prisoners confined in jail” and under the charge of the sheriff within the meaning of R.C.M. 1947, section 25-227.
Since all criminal prosecutions are made in the name of the State of Montana, R.C.M. 1947, section 94-4804, it is doubtful whether any prisoner may strictly be classified as a county prisoner. The fact too that it is alleged that no proceedings in the courts of Missoula County show that the named prisoners were committed to jail by the Missoula County courts is of no avail since the sheriff must accept federal prisoners, R.C.M. 1947, section 16-2807, prisoners from other counties, R.C.M. 1947, sections 94-5904 to 94-5906, witnesses to be used in criminal cases, R.C.M. 1947, section 16-2803, and even must hold prisoners upon demand of the executive authority of another state, R.C.M. 1947, section 94-501-7 et seq.
Likewise it is proper in this state under certain circumstances for a peace officer to make an arrest without a warrant. R.C.M. 1947, section 94-6003. Also he may make an arrest upon an oral order of a magistrate. R.C.M. 1947, section 94-6005.
It is true that when an arrest is made without a warrant the person arrested must without unnecessary delay be taken before the nearest or most accessible magistrate in the county and a complaint must be made before such magistrate. R.C.M. 1947, section 94-6016. However, if after an arrest is made without a warrant it is discovered that the person arrested has committed no crime he can be released without the filing of any complaint. *505"While retained in custody by the sheriff the latter must provide his board and is accordingly entitled to present a claim for so doing. If the sheriff abuses his authority in making arrests, or converts the jail into a flop house, then the county’s liability to the sheriff might be affected, compare Nolan County v. Yarbrough, Tex. Civ. App., 34 S.W. (2d) 302, but there is no such allegation made in the information before us. So far as the information before us is concerned, the arrests were made in good faith, the prisoners were actually fed by the sheriff, and he properly included their board in his claim to the county.
The information does not charge directly or indirectly that the named prisoners were not legally confined in the Missoula County jail and is insufficient to constitute an offense under R.C.M. 1947, section 25-229, which is the section under which the state contends the charge is prosecuted.
The court properly sustained the demurrer to the information. Other contentions made require no consideration.
The judgment appealed from is affirmed.
MR. JUSTICES ANDERSON and DAVIS, concur.