
    The State vs. John D. Epps.
    1. Ckihikal Law. Plea of former conviction. Practice. The plea of former conviction to an ■ indictment for a misdemeanor is in legal effect a confession of the charge; and where the defendant to an indictment for an assanlt and battery pleaded a former conviction before a justice of the peace under the small offence law, to which it was replied that said supposed conviction was by collusion and in fraud of the law, and defendant rejoined traversing the replication, and the issue was tried and found against the defendant, it is held that the Court should have pronounced judgment against him as if convicted upon the plea of not guilty.
    2. Cases cited. Knight vs. The State MSS., Knoxville, September Term, 1856.
    EROM KNOX.
    The defendant -was indicted in the Circuit Court of Knox county for assault and battery. At the February Term, 1857, before Judge Gaut, he filed a plea of former conviction before a justice of the peace under the “small offence” law. To this plea Attorney -General McAdoo replied that said proceeding, relied on as a conviction, was by collusion with the prosecutor therein, and in fraud of the law. The defendant rejoined, denying the truth of the replication, and tendering an issue to the country, which was accordingly made and tried, and which resulted in a verdict for the State. The defendant was then permitted to plead not guilty to the indictinent, and was on that plea acquitted by the jury; whereupon, the Attorney-General moved for judgment against him on the first verdict, which the Court refused, and gave judgment discharging the prisoner. The Attorney-General appealed in error.
    Sneed, Attorney-General, for the State.
    E. T. Hall, for the defendant.
   McKinney, J.,

delivered the opinion of the Court.

This was an indictment for an assault and battery. The defendant pleaded, in bar, a former conviction, before a justice of the peace. To this a replication was filed, alleging that the supposed former conviction was by the fraud and collusion of the defendant. The defendant rejoined, traversing the replication, and issue to the country was taken thereon. Upon this issue, the jury found against the defendant. The Court, without rendering any judgment on the verdict, on motion of the defendant, granted him leave to plead “not guilty” to the indictment. A trial was thereupon had, and the jury found the defendant not guilty as charged.

The Attorney-General then moved the Court to render up judgment against the defendant on the first verdict, disregarding the subsequent proceedings and verdict of acquittal. The Court refused this motion, and discharged the defendant; and the Attorney - General appealed in error.

We think the Court erred in allowing the defendant to plead not guilty, after verdict against him on the plea of former conviction. The latter plea was, in legal effect, a confession of the charge in the indictment; and upon this issue being found against the defendant, the Court ought to have proceeded to render judgment for fine and costs, as on a verdict on the plea of not guilty. In refusing the motion of the Attorney- G-eneral to render such judgment, notwithstanding the verdict on the plea of not guilty, the Court erred. The judgment will be reversed, and judgment rendered here for a fine of five dollars, with costs.

The point decided in the case of Knight vs. The State, at the last term, is not considered by us as being at all at variance with the principle laid down in the present case.

Judgment reversed.  