
    THE STATE v. RICHARD PHELPS.
    Nashville,
    December Term, 1877.
    (S. C., 3 Leg. Rep., 282.)
    CRIMINAL PRACTICE.
    A plea in. abatement ten dering an issue of fact must be tried by a jury, unless a jury is waived. [The jury is now waived unless demanded as provided by law. See Code, sees. 4611-4616, and notes.]
   Per curiam.

The prisoner was arraigned before the circuit court of 'Wilson county, upon a presentment for carrying unlawful weapons. lie pleaded a misnomer in abatement, his plea averring that his name is not Richard Phelps — the name under which he is presented; nor has he ever been known or called by that name, and that his real name is Andrew Washington Phelps.

The attorney-general took issue on the plea, and thereupon the court, without a jury, or the waiver of a jury, adjudged the issue in favor of the defendant, and discharged him, and the attorney-general, on behalf of the state, appealed.

‘The judgment is erroneous. The plea tendered an issue of fact, to be determined as any other question of fact, by a jury — or by the court upon a waiver of the jury trial.

Them being no jury, and no waiver thereof, the judgment must be reversed, and the case remanded for other and further proceedings.

Reverse the judgment.  