I am of the opinion that the Supreme Court had no authority to inquire into this case by indictment, as it involves one of the minor crimes, the exclusive jurisdiction of which is conferred upon a Court of Special Sessions by section 56 of the Code of Criminal Procedure, except where the certificate provided by section 57 is obtained. (Code Cr. Pro. § 22.) That question was sufficiently raised at the commencement of the trial by objection to the jurisdiction of the court, and by a motion in arrest of judgment. Section 331 provides that the objection to the jurisdiction of the court over *Page 310 the subject of an indictment, or that the facts stated do not constitute a crime, may be taken at the trial or in arrest of judgment. (Code Cr. Pro. § 467.) Thus, the exception to the denial of those motions sufficiently presents the question, and upon the ground that the motions were improperly denied, I think the judgment should be reversed.
I seriously doubt, however, if that question could be properly raised by demurrer. The objections that may be thus raised when they appear upon the face of the indictment are specified in section 323. None of the grounds stated in that section seems to include the objection upon which the decision in this case is based. Subdivision one states as one of the grounds of demurrer, that "the grand jury, by which it was found, had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the county." Although that subdivision declares that a demurrer may be taken upon the ground that the grand jury had no legal authority to inquire into the crime charged, yet that provision is expressly limited to a case where its want of authority to make such inquiry is by reason of the crime not being within the local jurisdiction of the county. Obviously that subdivision has no application here, as the offense was committed within the county. By the second subdivision, one of the grounds of demurrer is that the indictment does not conform substantially to the requirements of sections 275 and 276. It cannot be pretended that this indictment was insufficient in that respect. Nor can it be claimed that more than one crime was charged within the meaning of sections 278 or 279. It is equally apparent that the facts stated constitute a crime, and we find nothing in the indictment which, if true, would constitute a legal justification of the acts charged, or other legal bar to the prosecution. As these are all the questions authorized to be raised by demurrer, it seems quite obvious that the objection that the court in which the indictment was found had no jurisdiction by reason of the exclusive jurisdiction of the Court of Special Sessions, cannot, under the provisions of the Code, be raised by demurrer. *Page 311
I fully concur in the opinion and reasoning of my Brother O'Brien, so far as necessary, to the determination of this case. But I am not prepared to concur in his view that an indictment for a misdemeanor found in a court of general jurisdiction must allege that it does not fall within the provisions of section 56, or, if so, that a certificate has been procured under section 57, and that the omission of those allegations renders the indictment demurrable under the Code. Hence, I am constrained to place my vote upon the ground that the question of jurisdiction was properly raised by the defendant's motions and exceptions to their denial, and to refrain from concurring in the conclusion that the demurrer should have been allowed.