
    State v. Charles Straughter.
    [59 South. 844.]
    Cbiminal Law. Appeal. Demurrer. Oode 1906, section 40.
    Where an appeal is taken by the state under Code 1906, section 40, from a judgment sustaining a demurrer to an indictment and before the hearing of such appeal á new indictment for the ' same offense is returned against the defendant, such appeal will be dismissed by the supreme court.
    Appeal from the circuit court of Holmes county.
    Hon. Moneoe MoCluege, Judge.
    Charles Straughter was indicted. From a- judgment sustaining a demurrer to the indictment, the state appeals.
    The facts are fully stated in the opinion of the court.
    
      Frmik Johnston, assistant attorney-general, for state.
   Cook, J.,

delivered the opinion of the court.

It appears in the record in this case that the defendant had been reindicted by the grand jury for the identical crime with which he was charged before this appeal was granted. It is true section 40 of the Code of 1906 gives the state the right of appeal from a judgment sustaining the demurrer to an indictment; but we do not think that this section contemplated that a mere moot case should be submitted to this court for decision. On the contrary, it is our opinion the right of appeal was given to the state for the purpose of correcting the errors of the court in sustaining the demurrer, so that the state might then proceed upon the indictment to try a defendant for the crime charged against him; and it was not intended that mere experimental appeals which would accomplish no good result, should be taken to this court.

There is nothing before this court which could be of any value either to the state or the defendant in this case, and the appeal is therefore dismissed.

Appeal dismissed.  