¶1 (concurring specially). — In the main, I concur with views expressed in the majority opinion but I cannot subscribe to the view that the plaintiff in error is estopped to be heard on the merits of a plea in abatement which was filed pursuant to permission granted by the court to withdraw the plea of not guilty and file plea in abatement, although such proceedings were had after a trial had been had on the information, which trial resulted in conviction and which judgment of conviction had been reversed by the Supreme Court.
¶2*152 It is my view that when the judgment of conviction was reversed and the cause remanded the case then stood in the criminal court of record in the same status as if no trial had been had on the information.
¶3 Entertaining this view, it appears clear to me that when the accused procured the consent of the trial court to withdraw his plea of not guilty and to file a plea in abatement, he was within his rights to attack the information by such plea. A demurrer to the plea or pleas, in abatement put in issue the legal sufficiency of the plea or pleas.
¶4 It appears from the record that the view above stated was that which was entertained by the trial court and the trial court considered the pleas and sustained the demurrers thereto.
¶5 It is not necessary to set out here the pleas in haec verba but it is sufficient to say that the allegations are not sufficient to show that the information was not based upon facts that had been sworn to as true and which, if true, would constitute the offense therein charged so that it failed to comply with the provisions of Section 28, Article V, of the Constitution, Section 5976 R. G. S, 8257 C. G. L.
¶6 The record shows that the accused had been indicted by a grand jury for the offense of murder in the first degree; that under that indictment he had been convicted of the offense of murder in the second degree; that the judgment of conviction had been reversed by the Supreme Court of Florida; that when this occurred the defendant stood charged with the offense of murder in the second degree and was subject to be tried for that offense but not for murder in the first degree as the conviction of murder in the second degree on the indictment charging murder in the first degree had been equivalent to an acquittal of murder in the first degree.
¶7 The plea in abatement does not allege that sufficient facts *153 were not shown to be as true by witnesses duly summonsed before a grand jury to show the defendant guilty of murder in the second degree. Nor are the allegations sufficient to show that the information was not based upon facts before sworn to as true in a court of competent jurisdiction when the defendant was on trial charged with murder in the fiist degree in the Circuit Court of Polk County.
¶8 In the case of White v. State, 126 Fla. 760, 171 Sou. 809, the information was held bad because it was shown that it was based upon testimony adduced before a justice of the peace who was without jurisdiction in the matter under investigation. That infirmity is not shown to exist by the pleas in the instant case.
¶9 It, therefore, follows that the pleas in abatement were insufficient in law and the demurrers were properly sustained.