Ex Parte Burt
We think that the writ should be denied for the reason that the defendant was not entitled to have the prosecution against him dismissed because of his appearance before the grand jury under the circumstances set forth in the opinion of the Court of Appeals. In other words, section 12 of the Acts of 1915, page 12, does not apply to one who voluntarily appears before the grand jury for manufacturing a defense to a criminal prosecution pending against him.
We do not wish to commit this court, however, to the soundness of the other two propositions advanced by the Court of Appeals:
First, that the plea or motion interposed by the defendant was not available because not sworn to. Whether it had to be verified or not the record discloses no demurrer or objection to same.
Second, that this defense, if meritorious, would not be available because the first indictment was quashed or dismissed and he did not appear before the grand jury that returned the second one, notwithstanding the second one was for the identical offense embraced in the first indictment.
Writ denied.