
    Peters v. The State.
    To an indictment for selling liquor without a license, the defendant pleaded; that he had a license, and issue was joined upon that plea, and upon that issue the jury found the defendant guilty; held that the plea should have, been “ not guilty; ” that the-state should not have joined issue upon any other plea, and that the verdict and judgment rendered under such an. issue should ha,vc been arrested.
    Error to Lee District Court.
    
   Opinion by

Kinney, J.

The plaintiff in error was indicted for selling, liquor without license. By the plea which ha interposed he acknowledged that he sold the liquor, hut averred that-he sold the same by- virtue of a license issued for that purpose, which he sets out and makes part of Ms plea. The state replies to the plea, and takes issue upon so much of the plea as relates, to the defendant’s having a license to sell, &c.

The cause was tried upon this issue and upon the evidence the jury found the defendant guilty. A motion was made in arrest of judgment on the ground that the issue.was immaterial, and consequently no judgment could be entered upon the verdict., which the court overruled. This, is assigned for error.

We think the const should have, arrested the judgment. The plea tendered an immaterial issue. The state accepted the issue so tendered, and upon this issue the court permitted the parties to go. to trial. The- plea should have been a not guilty; ” and the license used as evidence to establish the truth of the plea. But, instead of this, the plea, was that he baj a license, by which he was authorized to, sell; and the state saw proper to join issue upon, this, question of fact, which only left the simple question for-the jury- to End whether he had a license as averred in his plea or not. If the jury found that he had a license, they must so report» as their verdict, and if they found on this issue, that the defendant had not a license, they must then report that fact as the result of their verdict; but uponmeitheivverdict would it be possible to enter up a judgment.. The whole object of jury trials in criminal cases is to ascertain whether the accused is “ guilty ” or “ not guilty,” and' not to try an issue upon an immaterial fact, because unless- the merits of the case can be tried on the issue, nothing is accomplished,, nothing established. The plea presented a very essential item of evidence for the defendant, and it might or might not constitute an insuperable defence, but this could only be ascertained when it was introduced as proof under the proper plea, but not as oSending matter of itself upon which to base an issue.. The jury could not properly find the defendant “ guilty ” upon the issue joined, because they were only sworn to try the issue between the parties, and that issue as we have shown was whether Peters had a license to sell or not, and a verdict of “ guilty” or “ not guilty” would not be at all responsive to the issue which was made by the parties, and which the jury were sworn to try and' determine. Then the only verdict that the jury could return was whether the fact averred in the plea was true or falsé, and such a verdict, as we have said, would virtually amount to nothing, as no judgment could be rendered upon it.

C. H. Phelps, for the prisoner.

€. J. Meparland, for the state..

The court then we think should have arrested the judgment, and as they did* not it was-; error.

Judgment reversed „  