Duffey v. State

120 N.E. 658, 187 Ind. 611, 1918 Ind. LEXIS 73

• Court: Indiana Supreme Court
• Decided: November 8, 1918
• Docket: No. 23,383
• Status: Published

Opinion

Spencer, J.

— Appellant was tried and convicted on an indictment which charges him with a violation of §8351 Bums 1914, Acts 1907 p. 689, and has appealed from the judgment of conviction. The indictment in question was returned by the same grand jury which returned the indictment under consideration in the case of Stipp v. State (1918), ante 211, 118 N. E. 818, and the irregularity in the selection of that grand jury was properly presented in this case by the first paragraph of appellant’s plea in abatement. A demurrer to that plea was sustained, but the state, on appeal, practically concedes that this ruling was erroneous. On the authority of the Stipp case, supra, we hold that the trial court erred in sustaining appellee’s demurrer to the first paragraph of appellant’s plea.in abatement. Other questions presented need not receive particular consideration.

Judgment reversed, with instructions to overrule the demurrer to the first paragraph of appellant's plea in' abatement, and for further proceedings not inconsistent herewith.

Note. — Reported in 120 N. E. 658.