Page:1862-63 Territory of Dakota Session Laws.pdf/137

128 2. That more than one offense is charged in the indictment.

3. That the facts stated do not constitute a public offense.

4. That the indictment contains any matter, which, if true, would constitute legal justification or excuse of the offense charged, or other legal bar to the prosecution.

Sec. 4. The demurrer must be in writing, signed either by the defendant, or his counsel; it must distinctly specify the ground of objection to the indictment, or it may be disregarded.

Sec. 5. Upon the demurrer being filed, the objection presented thereby must be heard, either immediately, or at such time as the court may appoint.

Sec. 6. Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes.

Sec. 7. If the demurrer be allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court allow an amendment where the defendant will not be unjustly prejudiced thereby, or being of opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, direct the case to be re-submitted to the same or another grand jury.

Sec. 8. If the court do not allow an amendment or direct the case to be re-submitted, the defendant, if in custody must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded him.

Sec. 9. If the court direct that the case be submitted anew, the same proceedings must be had thereon, as are prescribed in sections six and seven of chapter twenty-one.

Sec. 10. If the demurrer be disallowed or the indictment amended, the court must permit the defendant at his election to plead, which he must do forthwith, or at such time as the court may allow. If he do not plead, judgment must be pronounced against him.

Sec. 11. When the objections mentioned in section three of this chapter, appear upon the face of the indictment, they can only be taken by demurrer, except that the objection to the