State v. Wellman

Per Curiam. On the trial of this cause and immediately after a jury had been impaneled to try the issues presented by the indictment and defendant’s plea of *489 not guilty, and, after the county attorney had made his opening statement to the jury, counsel fo,r defendant interposed a motion to quash the indictment and for the discharge of defendant, on the ground that on the facts stated by the county attorney there could be no conviction, for such facts if established would not constitute a violation of the statute on which the indictment is founded. Thereupon the court discharged the jury and certified the cause to this court for the determination of -the question thus raised. The certification of the cause to this court must be dismissed. The facts do not bring it within the statute providing for such review. G. Si. 1913, § 9251. The question certified does not arise upon a demurrer or special plea to the indictment, nor has there been a conviction thereunder. State v. Toole, 124 Minn, 532, 144 N. W. 474 ; State v. Billings, 96 Minn. 533 , 104 N. W. 1150 . Neither has the trial court decided the question presented by defendant’s motion; an essential prerequisite. State v. Byrud, 23 Minn. 29 ; State v. Smith, 116 Minn. 228 , 133 N. W. 614 . A question arising at the trial by a motion challenging the sufficiency of the indictment o.r the sufficiency of the evidence to justify a verdict of guilty, can be certified to this court only after the defendant has been convicted. And a question which the trial court has not decided cannot be certified up in any case. The proceedings in this court are therefore dismissed and the cause remanded for further proceedings.