Page:Revised Codes of the State of North Dakota 1895.pdf/1452

§§ 8086-8092 § 8086. Motion granted. Procedure. If the motion is granted the court must order that the defendant, if in custody, he discharged therefrom, or, if admitted to bail, that the bail be exonerated, or, if he has deposited money instead of bail, that the same be refunded to him, unless the court directs that another or an amended information be filed or that the case be submitted to the same or another grand jury; or, if the case is such that an information might have been filed against the defendant had a grand jury not been called at the time, or the defendant at any time waives a preliminary examination, in writing, the court may direct an information to be filed for the offense charged in the indictment set aside.

§ 8087. Further prosecution. Procedure. If the court directs that another or an amended information be filed or that the case be resubmitted to the same or another grand jury, the defendant, if already in custody, must so remain, unless he is admitted to bail: or, if already admitted to bail or money has been deposited instead therefor, the bail or money is to be answerable for the appearance of the defendant to answer a new information or indictment, and unless another or an amended information or an information in the place of the indictment set aside, as provided in the last section, is filed within ten days from the date of the order, or the filing of the defendant's waiver of a preliminary examination, or a new indictment is found at the same or next term of the district court, as the case may be, the defendant must be discharged and his hail exonerated or money refunded as provided in the preceding section.

§ 8088. Order setting aside, not a bar. An order setting aside an information or indictment, as provided in this article is no bar to a future prosecution for the same offense.

ARTICLE 3. - DEMURRER.

§ 8089. Defendant's pleading. Demurrer. Plea. The only pleading on the part of the defendant is either a demurrer or a plea.

§ 8090. Made in open court. Time. Buth 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.

§ 8091. Grounds of demurrer. The defendant may demur to the information or indictment when it appears upon the face thereof, either:

1. That the court has no jurisdiction of the offense charged therein: or, if an indictment, that the grand jury by which it was found hai no authority to inquire into the offense charged. by reason of its not being within the jurisdiction of the county or judicial subdivision.

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

3. That more than one offense is charged therein.

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

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

§ 8092. Requisites of demurrer. The demurter must be in writing, signed either by the defendant or his counsel, and filed.

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