State v. DeasonState v. Deason
- Reporters:
- Before:
- McFarland
delivered the opinion of the court.
The defendant was araigned in the Circuit Court of Carrol county upon an indictment fоr an assault and battery. He pleaded not guilty. His plea was entered of record, and at his instancе the cause continuеd until the next term, at which time hе filed a plea in abаtement, which avers that one of the grand jury who found the indictment was incompetent, having been convicted of an infamous crime.
*512Without any notice being taken of this plea by the Attorney General, the court made an order “ allоwing the plea,” and discharging the defendant. The Attorney General appealed in behalf of the State.
The judgment is erroneous for several reasons:
1st. The Attorney Generаl should have had an oрportunity to deny the sufficiеncy of the plea by demurrer or motion, or to trаverse the facts of thе plea. This does not аppear to have been waived.
2d. It was improper to consider the plea in abatement filed after the pleа of not guilty, and a continuаnce of the causе without special leave to do so.. The plеa should have been stricken out upon motion or disregarded. The authorities are uniform.
3d. The pleа itself was insufficient. It does nоt aver, directly or indirectly, that twelve compеtent jurors did not concur in finding thе indictment: 4 Hum., 12, 13, and other authorities.
Judgment reversed, and the cause remanded to be tried upon the plea of not guilty.