Bopp

The defendants have presented a plea in abatement and a motion to quash the indictment herein for the various reasons in such pica and motion stated. The government has demurred to the plea. The only matters of importance, as it seems to me, that are set forth in either the motion or plea, are those which have to do with the sustaining of a demurrer to' a former indictment, and with the asserted lack of knowledge on the part of the grand jurors as to the contents of the present one.

[ 1 ] As to the former, it is urged that, a demurrer having been sus *178 tained to a previous indictment returned by the'same grand jury ( 230 Fed. 723 ) and no order of resubmission having been made by the court, the judgment on demurrer was final, and became an absolute bar to any other prosecution for the same offense. This is, indeed, the, provision of the Penal Code of the State of California. I cannot agree with counsel, however, in their contention that this court is bound in this matter by the state law.

[2] It is, however, further urged that, even if the state law be not applicable, the defendants are still exempt from further prosecution because at common law such was the effect of a…