OPINION
Montgomery, J.
Appellee
was charged by affidavit and information with assault and
battery with intent to murder. He filed a plea in abatement
to the charge, and the State's demurrer thereto, for want
of facts to avoid and abate the action, was overruled. An
exception to the ruling was reserved as a point of law for
the decision of this court; and, the State declining to plead
further, appellee was discharged.
The
answer in abatement, omitting the caption, is as follows
"Comes now George Roberts, the defendant in the
above-entitled cause, and, for answer by way of abatement to
the affidavit and information in the above-entitled cause,
says the offense referred to in said affidavit and
information, if any was committed, was committed on November
22, 1904, at the county of Fayette, in the State of Indiana;
that on November 22, 1904, John L. Hubbell filed an affidavit
before Finley H. Gray, the mayor of the city of Connersville,
in said county, charging this defendant with the identical
offense which is set forth in the affidavit and information
in this cause, and that said mayor,
upon the filing of said affidavit before him, issued a
warrant for the arrest of this defendant upon said charge,
and that he was arrested under said warrant and brought
before said mayor on said charge; that said mayor recognized
this defendant to appear at the first day of the then next
term of the Fayette Circuit Court, to answer to said charge,
and that this defendant gave bond in the sum of $ 1,000, to
secure his appearance at the then next term of said court;
that the then next term of the Fayette Circuit Court convened
in said county of Fayette, in the State of Indiana, on December 19, 1904, and that on said day the grand
jury of said court was regularly impaneled and entered upon
the discharge of its duties as such grand jury, and continued
its sessions as such until December 27, 1904, at which time
it adjourned, and the members thereof were discharged for
said term; that while so in session said grand jury examined
into the alleged offense for which this defendant had been
bound over to answer, and on December 27, 1904, returned in
open court an indictment against this defendant, charging him
with the offense of assault and battery upon Uriah M. Ranck,
and that said charge was founded upon the identical facts
alleged in said affidavit which had heretofore been filed
before the mayor of the city of Connersville, and upon which
this defendant had been recognized to appear before the
Fayette Circuit Court; that said indictment for assault and
battery, which was so returned by said grand jury, is now
pending and undisposed of in said Fayette Circuit Court, this
defendant having been arrested on said charge, and he is now
under recognizance in said Fayette Circuit Court to answer
said charge, and said indictment has not been quashed and no
trial of said cause has ever been had, and no other or
different indictment has ever been returned against this
defendant for the offense alleged to have been committed in
said indictment, nor upon the charge contained in said
affidavit and information; that the affidavit and information
in said cause No. 709, in which this answer is filed, were
filed in the Fayette Circuit Court on December 30, 1904,
after he, the defendant, had been arrested and had given bail
to answer to said indictment, and when said grand jury was
not in session, and after the same had been discharged, and
when this defendant was not in custody, nor on bail, on the
charge set forth in said affidavit and information, and said
defendant further says that the facts embraced in said
affidavit and information are the same upon
which said indictment was returned, and not other or
different, and that the prosecuting attorney and said Uriah
M. Ranck, who made the affidavit upon which such information
is founded, are attempting by means of said affidavit and
information to prosecute this defendant upon a charge of
felony in a cause which has already been investigated, as
heretofore shown, by a grand jury having full jurisdiction of
said matter, and an offense which is alleged to have been
committed and where said grand jury has returned an
indictment, as aforesaid, charging this defendant with a
simple assault and battery. Wherefore defendant says that he
ought not to be held to answer any further the charge in said
affidavit and information contained, and he prays that the
same now abate."
The
demurrer of the State was upon the grounds that said plea in
abatement did not state facts sufficient (1) to avoid the
affidavit and information, and (2) to abate the cause of
action stated therein. It is insisted by appellee's
counsel that the demurrer was so defective in form as to
justify the court in overruling it. Many cases are cited
exhibiting instances in which general demurrers to answers in
bar were held bad under § 349 Burns 1901, § 346 R.
S. 1881. In the case of Bryan v. Scholl
(1887), 109 Ind. 367, 10 N.E. 107, it was held by this court
that a demurrer to a plea in abatement for want of facts in
the language of § 349, supra, was good. This
holding was impliedly overruled by a contrary decision in the
case of Combs v. Union Trust Co. (1897),
146 Ind. 688, 690, 46 N.E. 16, wherein it was said: "The
ground of objection to the answer in abatement, stated in the
demurrer, was that it did not state facts sufficient to
constitute a defense. An answer in abatement is not required
to state facts sufficient to constitute a defense to the
action, it is sufficient if it states facts sufficient to
abate the action. The demurrer did not present this question,
and was therefore properly overruled." In Rush
v. Foos Mfg. Co. (1898), 20 Ind.App. 515, 51 N.E.
143, a demurrer for want of facts to abate the
action was treated as good. The section of the statute above
referred to relates wholly to answers in bar, and the form of
demurrers to pleas in abatement is nowhere prescribed. In our
opinion a demurrer to a plea of answer in abatement for the
reason that the same does not state facts sufficient to abate
the action is good. The second specification of the demurrer
in this case substantially conforms to this requirement, and
is sufficient.
It is
further contended that a mere statement in appellant's
brief that, by affidavit and information in the usual form
appellee was charged with assault and battery with intent to
murder, is not a sufficient compliance with our rule
governing the preparation of briefs. The sufficiency of the
affidavit and information upon the facts therein contained is
not involved in this...
