The opinion
BRETT, Presiding Judge
(specially concurring) .
I agree with the opinion of the majority of the Court to the extent that it holds that the sustaining of a motion to quash or set aside the information does not constitute a bar to further prosecution for the same offense. This is true even though the trial court also enter an order discharging the defendant. The effect of sustaining a motion to quash is to eradicate the information and to leave the case in the same posture as it was before any information was filed.
Because this area of law has been the source of some confusion, however, I feel that it is important to emphasize that the sustaining of a detmtrrer to the indictment or information constitutes a statutory bar to another prosecution for the same offense unless it appears of record that the trial court at the time directed the case to be resubmitted or a new information to be filed. Title 22 O.S.1971, § 508. In fact, as this Court stated in State v. Walton, 30 Okl.Cr. 416 , 236 P. 629, 632 (1925):
“[A] judgment sustaining a demurrer under the statute is as far-reaching and conclusive as to the defendant’s liability for the crime charged as though it has been rendered upon a verdict of not guilty, where the court does not order a resubmission of the case, or direct that a new information be filed.”
Further, I believe that the determination of whether a defendant’s pleading is in fact a motion to quash or a demurrer must be made by examining the substance of the contents of that pleading, not the title it has been given. Place v. State, Okl.Cr., 300 P.2d 666 (1956). In the instant case the order of the District Court, which is set out in its entirety in the majority opinion, *454 states as its fourth and final ground for dismissal that the facts stated by the information for violation of § 443 of 21 O.S. did not bring the defendant within the meaning of that statute. Such a defect is clearly one which must be raised by demurrer. Title 21 O.S.1971, § 504. Place v. State, Okl.Cr., 300 P.2d 666 ; cf. Cerday v. State, 52 Okl.Cr. 255 , 5 P.2d 169 . Had that ground been in fact raised by the pleading which this defendant titled “Plea and Abatement and Motion to Quash and Set Aside Information,” it would be my opinion that the order of the trial judge amounted to the sustaining of a demurrer and, although erroneous, operated as an absolute bar to further proceedings against the defendant for the same offense and limiting this Court on review to consideration of the matter as a reserve question of law. Defendant’s pleading, however, did not attack the sufficiency of the information, consequently, that question was not properly before the trial judge for decision. For that reason, I concur in this opinion.