State v. Firey

GANTT, P. J. This is an appeal by the State-from a judgment of the circuit court of Jasper county overruling a demurrer filed by the State to a plea in abatement filed by the defendant to an indictment against him for setting up and keeping certain gaming tables and devices and with enticing and permitting certain persons to bet and play for money at and upon said tables. The indictment and plea in abatement are in all respects the same as those in State v. Craig, handed [200] down at this delivery, and reported at page 201 of this Report. For the reasons assigned in that case the appeal of the State must he dismissed, unless the contention of the State in this case, that the plea was not in fact and in law a plea in abatement, is sound. Pleas in abatement are founded on some defect apparent on the face of the accusation or on some matter outside the record proceeding to the insufficiency of the accusation. ‘ ‘ The rule is that all matters extraneous to the record must be taken advantage of by this plea; while such matters as appear by the accusation — errors apparent — are usually brought to notice by motion to quash, or demurrer, or left for motion in arrest in the event of conviction.” [Bassett’s Crim. Pl., sec. 178; 1 Chitty’s Crim. Law, sec. 445; 1 Bishop’s New Crim. Proc., sec. 738; 12 Cyc., p. 718; Sampson v. State, 124 Ga. l. c. 779; State v. Salmon, 216 Mo. l. c. 503; State v. Sullivan, 110 Mo. App. l. c. 80; State v. Bordeaux, 93 N. C. l. c. 563.] That the plea alleged facts dehors the record for which the indictment should be quashed in the estimation of the defendant, is apparent, and the matters alleged were properly brought to the attention of the court in a plea, in abatement. [Wharton’s Crim. Pl. and Prac. sec. 350, 3b.] Having reached the conclusion that these matters were correctly incorpo;rated in the plea in abatement and the circuit court having sustained the plea and abated the indictment and the State not being entitled to an appeal in such a case, the correctness of the ruling in sustaining the plea upon the grounds therein set forth is not within our province to determine, for the reason that we have no jurisdiction of the appeal. The appeal is dismissed. Burgess and Fox, JJ., concur.