
    Hill vs. The State.
    The statutes authorizing double pleading, do not extend to crimin» al cases.
    If the jury instead of the court, try the issue joined upon the plea of “nul tiel record,” it is error.
   Opinion of the court delivered by

Judge Catron.

This was an indictment for gaming. The defendant pleaded, that he had been indicted and convicted for the same gaming, at the April term of the same court. The attorney for the government replied, that the State should not be precluded, &c. because there was no such record as was alleged in the plea, and prays the same may be inquired of by the record, and prays the judgment of the court, &c. The defendant then pleaded “not guilty;” upon which plea issue was joined. It seems from a bill" of exceptions, taken in the cause, that the court rejected (he pica of not guilty, and that the former conviction was n relied on,

A jury was empanncled, who said that the gaming cliargod in the indictment, was not the same as that sel forth in the defendant’s plea. On this verdict judgment ivas rcndeied.

We are of opinion the court acted correctly, in rejecting all pleas hut one. The statutes allowing double pleading, do not extend to criminal proceedings. (Act of 1794, ch. 1, sec. 26; 4 Ann, ch. 16,is the same in substance. See I Chitty’s Crim. Law, 435.

We are also of opinion, that it was error to permit the jury to try the issue of ‘nul tiel recordThis was a matter to be tried by the court. (Tidd’s Practice, 688. This record does not show there ivas any issue for the jury to try; the verdict rendered is a mere nullity, and warranted no judgment, for which error the judgment must be reversed.

Judgment reversed.  