Concurring. — I concur in the result. However, I do not understand that a plea of former acquittal, when in proper form, can involve solely a question of law, and that when such question is determined adversely to the defendant the trial court may properly take such question away from the consideration of the jury. Under C. S., sees. 8903 and 8904, a plea of former acquittal raises a question of fact which must be tried by the jury. In my opinion, the action of the trial judge in this case in instructing the jury that there was no evidence to support the plea of former acquittal, and directing the jury that it should find for the state on that issue, was proper. I do not think, under our statute, a trial court has authority to go further than that.
I am authorized to state that Justice Lee concurs in this opinion. McCarthy, J., having presided at the trial below, took no part.