State v. Phelps ( 1877 )


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  • 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.

Document Info

Filed Date: 12/15/1877

Precedential Status: Precedential

Modified Date: 10/19/2024