Weekly journal-miner., 1909-04-07
ANOTHER MOVE IN
 THE NORRIS CASE
Petitions For Re-hearing Tn The Supreme Court Are Filed, Novel Law Point Being Raised in Regard to The Plea Of The Statute of Limitations.

resignation by District Attorney that there was no matter or subject pend ing before the Board of Supervisors to
 whom such resignation was addressed It is the opinion ef the Attorney Gen eral that the filing of such resignati on- i if so faetO, imposed upon the Super | visoFs the duty of accepting or not ae- ! eepting the same, and therefore. at ] least the matter of accepting said re- ] signation was then pending before the i Board. If it be true that the indIct- | ment set forth such facts as properly | presented the circumstances 10 shes ! Court, then the order Of the Court | shauld have been that the matter be i submitted 10 the same OF another | Grand Jury. The record shows that the Court declined to make such an of fer.
 Fourth: Beeause the Court below committed error in declaring that the allegations of the indictment brought the same within the provisions of Par agTaph so of the penal code, and in holding that inasmueh as said section declared the acts mentioned in the in dietment constitute a misdemeanor- and 1t appeared that the statute or limitations had run, the Court was without jurisdiction and therefore the Court declined to submit the matter to another Grand Jury. It must be. remembered that the demurrer filed iR this ease did not raise the plea of lin itatiOus in bar, and there was abso- lutely nothing before the Court by way of pleading upon which such q defense could raise The refusal of Al sga 4n re-hearing was error.
 Argument.
 Paragraph S69 of the penal cGdt' provides that the defendant may de mur to the indictment when it appears upon the face thereof: 70 Fifth That it contains any matter. which if true, would constitute legal justlfea- tion or excuse of the Offense charged other other legal bar to the prcseeu- tion. It is plain, however, that sIet' justification or bar must be pleaded iI.a the indictment. which was not dane in this ease.
 Paragraph s76 provides that when the objections mentioned in Section SG9 appear upon the face of the in dictment they can only be taken by demurrer.
 Paragraph 296S of the civil code provides that the laws of limitation shall not he pleaable to any person II. any suit in any of the Courts of this Territory unless it he specially set forth as a defense in his answer
 Paragraph 1851 provides that in civ fl casrs the defendant may demUr tC the complaint when 1t appears upon the face thereof. that (amOug ether things1 the cause of action is barred ly I'mitGti1u. but 1859 provides that ire demurrer ~ha} defend and specify the grounds or objection and and un less ir do so it may be disregarded and l353 provides that if no objection i>- taken either hv demurrer or answer the defendant shall he deemed to have waived the same with certain eScep- tious not necessary to be mentioned here.
 The court undoubtedly had jurisdIe- ton of the subject matter of this ae- ton. Plea in bar does not go to the jurisdiction of the Court.
 If the indictment was defective uH- der the provisions of Section l6l of the penal code in not stating that the matter of accepting or not accepting q resignation, was pending, the Court should have ordered that it be re-sub-- mitted in order that an indictment curing that defect and still bringing II within the provisions of d6l could be- returned.