
    NONEMAKER vs. THE STATE.
    [indictment por gaming.]
    
      1. Waiver of objection to plea.' — Id a criminal case, if issue is joined on a plea and a trial is had thereon, without objection on the part of the State, the appellate court will not, at the instance of the State, treat such plea as a nullity.
    2. Plea of former conviction. — Under the plea of former conviction in a gaining case, if the record of the former conviction, and the parol evidence adduced in aid of it, fail to show conclusively the non-identity of the two cases, the court is not authorized to instruct the jury, that if they believe the evidence, they must find the prisoner guilty.
    Ebom the Circuit Court of Perry.
    Tried before the Hon. A. A. ColemaN.
    The indictment in this case was found at the fall term, 1857, of said circuit court, and charged the prisoner, in several different counts, with playing “ at a game with cards, or dice, or some device or substitute therefor,” at each of the public places enumerated in the statute. The trial was had at the spring term, 1859, on the pleas of not guilty and former conviction. “ On the trial,” as the bill of exceptions states, u the State introduced a witness who proved, that the defendant and one —:— played together at a game with cards, within twelve months before the finding of the indictment, in a public shoemaker’s shop, in Union Town in said county.” Under the plea of former conviction, the defendant then offered in evidence the record of his conviction, at the last previous term of said court, on the plea of guilty, under an indictment which was in precisely the same words as that in the present case, and which was found at the same term of the court. “ A witness was then introduced, who was examined as to whether this was the same offense for which a conviction was had at the last term ; and testified, that he was not examined as a witness on said trial, nor was any one else examined, — the defendant having pleaded guilty, and submitted to a fine of $20; also, that he was not a witness before the grand juiry; that he supposed the game for which the defendant was indicted and convicted as aforesaid, was a game in which defendant, witness and one- were engaged; that the three were indicted, and defendant and witness pleaded guilty. Said witness further testified to a game of cards played by defendant and one-at the same place, subsequently to the game played by the three as aforesaid, — said game beíweén the two being the same game about which the State had inti’oduced the testimony hereinabove mentioned. This being all the evidence in the cause, the court charged the jury, that if they believed the evidence, they must find the defendant guilty ; to which charge the defendant excepted.”
    P. Lockett, for the prisoner.
    M. A. BaldwiN, Attorney-General, contra.
    
   A. J. WALKER, C. J.

The State neither moved to strike out, nor demurred to the plea of former conviction, nor in any other manner objected to it in the court below. The record informs us that the defendant pleaded to the indictment the pleas of not guilty and of former conviction, and -the trial was evidently had upon both pleas. It would be neither a fair nor a just practice, for the court, at the instance of tbe State, on appeal, to treat'-tbe plea of former conviction as a nullity. If tbe State bad made tbe objection in tbe court below, the defendant might have remedied it. To allow it to be made here, after tbe plea has been treated in tbe circuit court as sufficient, would operate.as a snare for tbe defendant.

Whether tbe offense for which tbe accused was prosecuted in this case was tbe same for which be had been previously convicted,' was not conclusively determined by tbe record. It was a question as to which parol evidence was admissible, and was received.. The record and parol evidence, when considered together, do not so conclusively show that the offense for which there had been a former conviction was not tbe same with that which the State prosecuted in this case, as to authorize the charge that the jury must, upon the evidence, find for the State.

Judgment reversed, and cause remanded.  