(after stating the facts.) The state, having joined issue on tlie plea and gone to trial on the merits, abandoned its ground of demurrer. Tabor v. Merchants National Bank, 48 Ark. 454; 3 S. W. 805; Langley v. Langley, 45 Ark. 392; Jones v. Terry, 43 Ark. 230.
The court erred in directing a verdict for appellee. There was evidence tending to show that the prosecution before the justice was instituted for the purpose of eluding prosecution for the same offense in the circuit court. It was, at least, for the jury to say under the circumstances whether or not such was the object of the proceedings before the justice.
The third request for instruction on behalf of the state should have been granted. Richardson v. State, 56 Ark. 367. Bishop says: "If one procures himself to.be prosecuted for an offense which he has committed, thinking to get off with a slight punishment, and to bar any further prosecution carried on in good faith, — • if the proceeding is really managed by himself, either directly, or through the agency of another, — he is, while thus holding his fate in his own hand, in no jeopardy. The plaintiff state is no party in fact, but only such in name; the judge indeed is imposed upon, yet in point of law adjudicates nothing. * * * The judgment is therefore a nullity, and is no bar to a real prosecution.” 1 Bishop, Cr. Law, § 1010; McFarland v. State, 68 Wis. 400; Watkins v. State, 68 Ind. 427, 34 Am. Rep. 273, and numerous authorities there cited.
The matters set forth in the second request were proper for the jury to consider in determining whether there was a collusive prosecution before the justice. But the court did not err in refusing to tell the jury that these things if found constituted no defense.
The court did not err in refusing the first request. While the affidavit before the justice and the charge in the second count of the indictment do not show that the appellee was charged with the same offense, the proof on the trial, introduced without objection, tended to show that it was the same offense, and that appellant, as we have said, was seeking prosecution in the one court in order to escape it in the other.. . '
For the error indicated, the judgment is reversed, and’ the cause is remanded for new trial.