
    18231.
    Futch v. The State.
    Criminal Law, 16 C. J. p. 406, n. 29 New; 6. 414, n. 31 New; 17 C. J. p. 26, n. 31; p. 35, n. 56 New.
    Decided July 26, 1927.
    Arson; from Evans superior court—Judge Daniel. May 13, 1927.
    
      C. L. Cowart, for plaintiff in error.
    
      J. T. Grice, solicitor-general, contra.
   Luke, J.

A bill of exceptions will not lie to a judgment overruling a motion for a new trial in a criminal ease 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.

Writ of error dismissed.

Broyles, O. J., and Bloodioorth, J., concur. .  