Page:Revised Codes of the State of North Dakota 1895.pdf/1453

Before Trial. It must distinctly specify the grounds of the objection to the information or indictment, or it must be disregarded.

§ 8093. Time of hearing. Upon the demurrer being filed, the objections presented thereby must be heard, either immediately or at such time as the court may appoint.

§ 8094. Judgment on demurrer. 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.

§ 8095. Effect if sustained. Further proceedings. If the demurrer is sustained the judgment is final upon the information or indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is sustained may be avoided in a new information or indictment, directs another or an amended information, or an information in the place of the indictment demurred to as provided by law in case an indictment is set aside, to be filed, or that the case be submitted to the same or another grand jury.

§ 8096. Amendment not directed, defendant discharged. If the court does not permit the information to be amended nor direct that another information be filed or that the case be resubmitted as provided in the preceding section, 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 to him.

§ 8097. Defendant not discharged, further proceedings. If the court directs that another or an amended information or an information in place of the indictment demurred to, as provided by law in case the indictment is set aside, 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 hail or money is to be answerable for the appearance of the defendant to answer to a new information or indictment; and unless another or an amended information or an information in place of the indictment demurred to, is filed within ten days from the date of the order sustaining the demurrer, or the filing of the defendant's waiver of a preliminary examination, or a new indictment is found at the same or the next term of the district court, as the case may be, the defendant must be discharged and his bail exonerated or money refunded as provided in the preceding section.

§ 8098. Demurrer overruled. Procedure. If the demurrer is 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.

§ 8099. Certain objections only taken by demurrer. Exception. When the objections mentioned in section 8091, appear upon the face of the information or indictment, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the information or indictment, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.

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