Appeal from the Seventh Judicial District Court. Esmeralda County; Peter J. Somers, Judge.
Cleveland H. Baker, Attorney-General, J. Emmett Walsh, District Attorney, John F. Kunz, and P. F. Carney, for the State.
Augustus Tilden, for Respondent.
By the Court, McCarran, J.:
This is an appeal from an order of the district court of Esmeralda County, setting aside an indictment found by the grand jury of that county, by which indictment the defendant, Herbert Towers, was accused of obtaining money under false pretenses.
 From the record, it is disclosed that on January 30, 1912, the grand jury of Esmeralda County filed an indictment against the defendant, Towers, charging him with the crime of obtaining money under false pretenses. The defendant was arraigned under the indictment, and interposed a plea of not guilty. Later the district attorney of Esmeralda County moved the court to dismiss the indictment, stating that there was a question in his mind as to the ownership of the money obtained, as alleged in the indictment. Pursuant to his motion the court made an order dismissing the indictment, and at the request of the district attorney entered another order directing that the matter be resubmitted to the grand jury. Thereafter, and on the 21st day of March, 1912, the same grand jury, after having reinvestigated the case, made a report to the court that they found No true bill. Subsequently, to wit, on the 8th day of August, 1912, approximately four and one-half months thereafter, the district attorney moved the court for an order of resubmission to the same grand jury, and pursuant to the motion the court made such order, and on the 9th day of August, 1912, the same grand jury filed an indictment against the defendant
charging him with the identical crimeobtaining money under false pretenses. On the 13th day of August the defendant filed a motion to set aside the indictment upon the ground that at the time of the finding of the present indictment there existed on the part of the grand jury, and every member thereof, a state of mind in reference to the case and to the defendant which prevented it and him from acting impartially and without prejudice to the substantial rights of the defendant.
In furtherance of the motion, the defendant asserted: Said motion is based upon the fact that the grand jurors by which the present indictment was found heretofore, and before the finding of the present indictment, found and returned to this court an indictment, hereinafter referred to as the former indictment, against defendant, for the identical alleged offense attempted to be set forth in the present indictment, and prior to the finding of said former indictment caused to be produced before them, witnesses upon whose testimony they, and each of them, formed a belief in the probable guilt of defendant of said alleged offense and in accordance with which belief they on oath found said former indictment.
The motion to set aside the indictment made in behalf of the defendant was sustained by the court, and, from the order sustaining this motion setting aside the indictment, appeal is taken to this court by the state.
The position taken by the respondent in this case is that, the grand jury having found a former indictment against this defendant for the identical offense, and having filed that indictment in the court, and having thereby accused the defendant of the crime of receiving money under false pretenses, the acts of the grand jury in that respect made its members subject to the challenge as prescribed by the statute (subd. 6, sec. 7005), to wit: That a state of mind existed on the part of each and every one of the grand jurors finding such indictment which would prevent them from acting impartially and without prejudice to the substantial rights of the party challenging.
Section 7399 of the Revised Laws prescribes: The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order any action after indictment to be dismissed; but in such case the reasons of the dismissal shall be set forth in the order, which must be entered on the minutes.
It was pursuant to the foregoing section, upon the motion of the district attorney, that the first indictment was dismissed for the reasons, as stated in the record, that, a defect in the indictment having been drawn to the attention of the district attorney, he moved the court to dismiss the indictment, and resubmit the cause to the grand jury.
Section 7401, Revised Laws of Nevada, prescribes: An order for the dismissal of the action, as provided in this chapter, shall be a bar to another prosecution for the same offense, if it be a misdemeanor, but it shall not be a bar if the offense charged be a felony.
In this particular instance the offense charged was a felony, and hence the state was not barred from further investigation or prosecution of the case under proper procedure.
Section 7044, Revised Laws of Nevada, is as follows: The dismissal of the charge shall not, however, prevent the same charge from being again submitted to a grand jury or as often as the court shall so direct. But, without such direction, it shall not be again submitted.
As disclosed by the record subsequent to the dismissal of the first indictment, and upon the motion of the district attorney, the court on two occasions ordered the charge submitted to the same grand jury. On the first of those occasions the grand jury returned a report of No bill. On the second occasion, however, the grand jury returned an indictment.
Section 7101, Revised Laws, provides: If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same ...