[1] If the plea of former jeopardy or former acquittal is on its face insufficient, a demurrer lies. Brothers v. State. 22 Tex. App. 447, 3 S. W. 737; Jones v. State, 61 Ark. 88, 32 5. W. 81; Hite v. State, 9 Yerg. (Term.) 357; Shubert v. State, 21 Tex. App. 551, 2 S. W. 883; Wortham v. Commonwealth, 5 Rand. (Va.) 669. The practice of demurring to a plea of former conviction has been recognized in the state courts of Massachusetts. Commonwealth v. Bosworth, 113 Mass. 200, 18 Am. Rep. 467.
[2, 3] An acquittal by reason of a variance is not a bar to further prosecution. for the substantive crime attempted to be described, but not accurately described, in the first indictment. U. S. v. Riley (C. C.) 74 Fed. 210; Commonwealth v. Chesley, 107 Mass. 223. The Massachusetts statute relied on by the defendant (Rev. Laws, c. 218, § 22), providing that a misdescription of a written instrument is not a variance, does not apply to criminal proceedings in the federal courts. Rogan v. U. S., 144 U. S. 263, 300,_ 12 Sup. Ct. 617, 36 L. Ed. 429. The offense described in the present indictment is not the same as that described in the former one, a copy of which is annexed to the defendant’s plea.
[4] The facts stated in the pleas are, upon demurrer, of course, to be taken as true. So considered, I am of opinion that the pleas are insufficient, and that the facts therein alleged are not a bar to the prosecution of the present indictment.
