
    State v. Charles Johnson.
    May Term, 1899.
    Present: Taft, C. J., Rowell, Tyler, Munson, Start and Watson, JJ.
    Opinion filed February 14, 1900.
    
      Irregularities in grand jury room — Demurrer—Motion to dismiss — Motion in arrest — Irregularities in the grand jury room are not reached by a demurrer, a motion to dismiss or a motion in arrest, for none of these fastens upon matter not disclosed by the papers.
    
      Recital of evidence and ascertainment of facts distinguished — No course having been taken in this case which involved an inquiry as to the matters complained of, the case presents a statement of evidence tending to establish certain facts, but no ascertainment of the facts.
    Indictment for selling and furnishing intoxicating liquor contrary to law. Washington County, March Term, 1899, Thompson, J., presiding. Plea, not guilty. Trial by jury. Yerdict, guilty. Judgment on verdict. Exceptions by respondent.
    
      On account of matters disclosed by a witness for the State as to certain proceedings in the grand jury room, the respondent, by leave of court, but without withdrawing his plea of not guilty, filed a general demurrer which was overruled, and the trial ordered to proceed. For the same cause the respondent filed a motion to dismiss, and after verdict and before judgment, moved in arrest. These motions were overruled.
    
      Richard A. Soar, State’s Attorney, for the State.
    
      W. W. LaPoint for the respondent.
   Munson, J.

The court overruled successively the demurrer, the motion to dismiss, and the motion in arrest, by which the respondent sought to avail himself of certain matters testified to on the trial as having occurred in the grand jury room. There was no error in this, for none of these pleadings fastened upon irregularities not disclosed by the papers. No course having been taken that involved an inquiry as to the matters complained of, the case presents a statement of evidence tending to establish certain facts, but no ascertainment of the facts. It is apparent that a plea in abatement was the only proceeding adapted to the relief sought; and the respondent should have moved for some action that would have enabled him to get the benefit of that plea.

We dispose of the case upon these grounds, without considering the fact that the demurrer was entertained without a withdrawal of the plea of not guilty, and without considering whether the matters complained of, if properly presented, would vitiate the indictment.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions.  