
    20582.
    CAISON v. THE STATE.
    Decided July 16, 1930.
    
      
      C. L. Goivart, for plaintiff in error.
    
      J. T. Grice, solicitor-general, contra.
   Bloodworth, J.

The accused was put on trial under an indictment for murder. He filed a plea alleging that at the time of the trial he was insane. This special plea was a dilatory one and amounted to a plea in abatement. A bill of exceptions will not lie to a judgment overruling a motion for a new trial where the trial was upon the issues raised by such a plea and the verdict was against the plea. This question is settled by the ruling in Futch v. State, 37 Ga. App. 151 (139 S. E. 110), which is as follows: “A bill of exceptions will not lie to a judgment overruling a motion for a new trial in a criminal case where the only trial had was upon the issues raised by a plea in abatement, the verdict being against the plea. There is no difference in principle between a verdict finding against a plea in abatement, and a finding against such a plea by the judge (where, by consent, he passes upon the plea without the intervention of a jury), and it is well settled that the striking of a plea in abatement is not a ‘final'’ judgment within the meaning of section 6138 of the Civil Code of 1910. McElroy v. State, 123 Ga. 546 (51 S. E. 596); W. & A. R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). A plea of res judicata is a plea in abatement.”

Wrii of error dismissed.

Broyles, G. J., and Luke, J., concur.  