
    *Day v. The Commonwealth.
    December Term, 1845.
    (Absent Robertson, J.)
    Criminal Practice — Plea in Abatement — Trial of Issue. —Upon an indictment for a felony, tbe prisoner pleads in abatement that one of the grand j urors who found the indictment against him, was at the time a surveyor of a highway; and the attorney for the Commonwealth takes issue upon the plea. The issue should be tried by a jury.
    Everett Day, a free man of colour, was indicted in the Circuit Superior Court of Chesterfield, for an attempt to commit a rape upon Mary Slade. When brought to the bar he filed a plea in abatement, that Ethrall Hancock, one of the grand jurors, upon the panel which found the indictment against him “a true bill,” was a surveyor of a highway within the countj of Chesterfield, at the time the said true bill was found against him. The attorney for the Commonwealth took issue upon this plea; and the Court, without empaneling a *jury to try the issue, overruled the plea, and thereupon the prisoner pleaded not guilty.
    Several exceptions were taken by the prisoner to opinions of the Court overruling his objections to persons called upon the jury, but as they were not considered by this Court it is unnecessary to notice them.
    The result of the trial was a verdict of guilty, and the judgment of the Court that the prisoner should be hanged. Erom this judgment, the prisoner obtained a writ of error to this Court.
    Erench, for the prisoner.
    The Attorney General, for the Commonwealth.
   SMITH, J.,

delivered the opinion of the Court.

It appears from the record in this case, that the prisoner was permitted to file a plea in abatement, to which the attorney for the Commonwealth replied generally; and that the issue thus joined, was decided by the Court against the prisoner. This issue, so joined, not being an issue in law, but of fact, ought to have been submitted to a jury for trial; and it is the unanimous opinion of this Court, that for this error the judgment must be reversed, and the case remanded for a new trial. It has been deemed unnecessary to consider or decide any of the other points raised by the several bills of exceptions, as they cannot arise on the new trial.

Judgment reversed, and new trial awarded.  