Page:1887 Compiled Laws of Dakota Territory.pdf/1198

§§ 7289-7299

§ 7289. An order to set aside an indictment, as provided in this chapter, is no bar to a further prosecution for the same offense.

§ 7290. The only pleading on the part of the defendant is either a demurrer or a plea.

§ 7291. Both the demurrer and the plea must be put in in open court, either at the time of the arraignment, or at such other time as may be allowed to the defendant for that purpose.

§ 7292. The defendant may demur to the indictment when it appears upon the face thereof, either:

1. That the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county or subdivision.

2. That it does not substantially conform to the requirements of this act.

3. That more than one offense is charged in the indictment.

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

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

§ 7293. The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of the objection to the indictment, or it must be disregarded.

§ 1294. Upon the demurrer being filed, the objections presented thereby must be heard, either immediately or at such time as the court may appoint.

§ 7295. Upon considering the demurrer, the court must give judgment either sustaining or overruling it, and an order to that effect must be entered upon the minutes.

§ 7296. If the demurrer is sustained, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury.

§ 7297. If the court do not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he have deposited money instead of bail, the money must be refunded to him.

§ 7298. If the court direct that the case be submitted anew, the same proceedings must be had thereon as are prescribed in this act, or in sections 7286 and 7288.

§ 7299. If the demurrer be overruled, the court must permit the defendant, at his election, to plead, which he must do forthwith, or at such a time as the court may allow. If he does not plead, judgment may be pronounced against him.