
    (72 South. 844)
    No. 22095.
    STATE v. THOMPSON et al. In re THOMPSON et al.
    (Oct. 16, 1916.)
    
      (Syllabus by the Court.)
    
    Certiorari ©^íL-Prohibition <&wkey;3(l) — Nature and Form oe Remedy — Remedy by Mandamus.
    Where the trial judge refuses to permit the accused to file a plea or demurrer to the jurisdiction of his court, the proper remedy is by mandamus, and not by certiorari and prohibition.
    [Ed. Note. — For other cases, see Certiorari, Cent. Dig. § 4; Dec. Dig. <&wkey;4: Prohibition, Cent. Dig. § 4; Dec. Dig. &wkey;?3(l).]
    James M. Thompson and another were prosecuted for libel. Demurrer to the information on the ground that the court was without jurisdiction was overruled, and defendants apply for writs of prohibition and certiorari to Hon. John E. Fleury, Judge of the Twenty-Eighth Judicial District Court for the Parish of Jefferson.
    Application dismissed without prejudice.
    Robert H. Marr, of New Orleans, for relators. Lemle & Lemle and Benjamin T. Waldo, all of New Orleans, and George H. Woodside, of St. Francisville, amici curiee.
   LAND, J.

Relators represent in their petition that on June 14, 1916, an information was filed in the said district court charging them with the commission of the crime of libel in the parish of Orleans; that relators filed a demurrer to the information on the ground that said court was without jurisdiction 'in the premises over the offense alleged to have been committed in another parish; and that the judge of said court overruled said demurrer and ordered relators to trial.

Wherefore the relators filed the present application.

The case is before us on a rule to show cause granted by this court.

The respondent judge has answered, in substance, as follows:

That the information was filed on June 14, 19.16; that the relators were arraigned, and pleaded “not guilty,” and the case fixed for trial for June 27, 1916, and on that day was called for trial, and continued on the application of relators until June 29, 1916, and on said day on their application was continued until July 6, 1916; that in the interval the testimony of one witness was taken in open court on the behalf of the relators, and all witnesses present were ordered to return on said date; that on July 6, 1916, the case was called for trial, and relators’ counsel thereupon moved for leave to withdraw the plea of “ndt guilty,” and to enter a plea of “guilty,” for the purpose of filing a plea to the jurisdiction of the court and a demurrer to the information; that the court, on the objection of the district attorney that the motion came too late, refused to grant the permission requested by the relators; that the respondent judge did not overrule the plea to the jurisdiction of the court, but simply refused to allow the relators to withdraw their plea of “not guilty” for the purpose of entering a plea of “guilty” and filing a demurrer, as above stated.

The .respondent judge has sent up the original record, and the information charges a libel, published in a certain newspaper in the city of New Orleans and having a wide circulation particularly in the parish of Jefferson, and that the offense charged was committed in said parish.

The following entry appears on the minutes of date July, 6, 1916:

“Counsel for the accused moved the court .for. permission to withdraw their former plea of not guilty and to enter a plea of guilty in lieu thereof for the purpose of filing a plea to the jurisdiction of the court and a demurrer to the information, which motions were objected to by counsel for the state on the ground that the plea should have been filed in limine and on the further ground that, as the case had already been opened and the testimony of a witness already had been taken, the plea came too late, which objection after hearing argument! 'of counsel was sustained by the court, and the accused were refused permission to withdraw their pleas previously entered and plead guilty for the purpose of filing their aforesaid pleas, and the court refused permission to accused and their counsel to file said plea to the jurisdiction of the court and a demurrer to the information, whereupon counsel for the accused notified the court that he would apply to the Supreme Court for a writ of certiorari and prohibition.”

It appears on the face of the information that the alleged, libel was published in the parish of Orleans, and the edition of the newspaper in which it was printed was widely circulated, and particularly in the parish of Jefferson.

The question of law whether the publisher of a newspaper can be prosecuted for libel in any parish in which his paper may happen to circulate is most important, but has not been brought before this court in the regular course of procedure.

The judge below did not pass on this question, but refused to permit a plea to the jurisdiction of his court to be filed.

Surely, this court cannot pass on the merits of a plea which has been excluded from the record by the ruling of the trial judge.

Relator’s remedy was by mandamus, and not by certiorari and prohibition.

It is therefore ordered that the restraining order herein issued be recalled, and that relator’s application be dismissed, with costs, but without prejudice.  