CANAL ZONE v CLARK.

H. A. GUDGER, J. This case was considered and an opinion rendered at the April term of this court. Motion was made by the attorneys for the defendant to reopen the question for the alleged reason that the Court had inadvertently overlooked some of the main contentions made by them at the hearing. This motion was allowed. The points for consideration at this time are the demurrer, the plea of former acquittal, and as to whether or no the evidence is sufficient to justify the action of the court in its conclusions.
The record in the case shows that the defendant was arraigned on the 2d day of April, 1906, and that he entered a plea of not guilty on each of the three counts contained in the information. It also shows that on the same day he filed the demurrer referred to, as well as the plea of former acquittal. The record fails to show that the plea of not guilty as entered was withdrawn for the purpose of filing the other two pleas in question, or that a request was made to the court for this purpose. It is a fact, however, agreed to by all the attorneys, that when the plea of not guilty was entered it was agreed and understood that the counsel for the defendant should have the right to file such other motions or pleas as they might deem necessary. The record also shows that the demurrer was overruled by the court, but does not show that the court, at the close of the Government's case, while he overruled the demurrer and refused to require the Prosecuting Attorney to elect as to which count he would go for, did announce that so far as the count for burglary was concerned, no evidence need be offered on that, as that count would be eliminated. It is agreed by all the attorneys to the action that this was done by the presiding judge. As the demurrer and the question of election referred specially to the third count in the bill of information, the action of the court in eliminating this corrected any error that might have been committed and left it for the defendant to answer only as to the first and second counts in the bill of information. It will be noted further that, even with the three counts in the bill of information, and the third charging burglary, yet, as all the facts and circumstances show, it was with regard to one and the same transaction and therefore the defendant had knowledge with regard to the

1908.

131