State v. Comfort

Gileillan, C. J. This is an indictment for cruelty to animals under Laws 1871, ch. 34, § 1. The specification of the offence is that the defendant, with another, “did cruelly, wilfully, and with force and arms, overdrive two horses, * * * by reason of which said overdriving the said two horses were tortured and tormented.” It is objected that the indictment should go beyond the words of the statute, and more particularly describe what constituted the overdriving. But a charge in an indictment may be made in the words of the statute, without a particular statement of facts and circumstances, when, by using those words, the act in which an offence consists is fully, directly and expressly alleged, without any uncertainty or ambiguity. Com. v. Welsh, 7 Gray, 324. Such is the case in this indictment. To the indictment the defendant interposed a plea of a former acquittal, and on the trial offered, to prove the plea, a former indictment, apparently for the same offence, a [272] demurrer to that indictment, and a judgment of the court sustaining such demurrer, and evidence tending to identify the offence as the same. The court charged the jury that there was no evidence to warrant them in finding the plea proved. This was error. Gen. St. ch. Ill, § 7, in reference to demurrers to indictments, provides : “ If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offence, unless the court allows 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, directs the case to be resubmitted to the same or another grand jury.” The allowance of an amendment, or direction for resubmission, must be by matter of record, made at the same time when the demurrer is allowed, and ought regularly to be made in the order or judgment allowing the demurrer. Otherwise the defendant will never know when his case is finally determined by the judgment on the demurrer. The former indictment, the demurrer, and judgment allowing it, if the offence be identified as the same, establish the plea of former acquittal. Judgment reversed.