Commonwealth v. C. B. Cook Co.

JUDGE DURELLE DELIVERED tee opinion of the court. Tbe iacts. in this case are the same as those in the case’ of Commonwealth v. The G. W. Taylor Co., this day decided, except that the offense of keeping, maintaining, suffering and permitting a nuisance is alleged in the indictment to> have been committed “on the - day of February, 189f>r and before the finding of this indictment.” It is objected to the sufficiency of this indictment that there is no averment that the offense was committed within twelve months before the finding of the indictment. This court has recently held, in the case of Stamper v. Commonwealth, ante, 33, that the averment mentioned was unnecessary, providing the date alleged for the commission of the offense was within twelve months before the finding of the indictment. It was, therefore, not necessary to the- sufficiency of the indictment to make averments showing that' this indictment was a continuation of a previous prosecution not barred by the statute. The question, therefore;, arises whether the plea of former acquittal is sufficient. Thai plea simply avers that upon a former indictment for the same offense a judgment was rendered reciting that the defendant had demurred to the indictment; that the demurrer-had been sustained and the indictment dismissed, and! that the indictment now under consideration was found upon [290] fhe same facts and for the same offense charged in the one to which the demurrer had been sustained. •We do not think this is a sufficient plea in bar. The pleadings permitted to a defendant in a criminal proceeding are a demurrer, a plea of guilty, a plea of not guilty and a plea of former acquittal or conviction (Criminal Code, sections 161-165). A plea that a demurrer had been sustained to a former indictment for the same offense is not a plea of former acquittal, unless it be further pleaded that the indictment contains matter which was a legal defense or bar to the indictment. This does not appear in this case. The original indictment is not copied into or made a part of the plea in bar. The demui'rer to the plea in bar should, therefore, have been sustained and the case is- reversed, with directions to set aside the judgment dismissing the indictment and for further proceedings consistent with this opinion.