Smith v. Commonwealth ( 1871 )

Opinion by

Judge PeteRs:

The defendants in the court below demurred to the indictment and their demurrer was overruled — and the propriety of that ruling presents the first question for adjudication.

By Sub-sec. c of sec. 165, Crim. Code, it is provided that when more than one offense is charged in an indictment, except as provided for in section 126, a demurrer is proper. Two offenses are charged in this indictment, and are not any of those provided for, or allowed to be joined by the last named section of the Criminal Code. Consequently, the indictment is bad, and the demurrer should have been sustained. Wherefore the judgment is reversed and the cause remanded with directions to sustain the demurrer to the indictment and for further proceedings in conformity with this opinion.

Fisks, Duncan, for appellant.