On Rehearing.
Fenner, J.We are compelled to admit our error in proceeding to pass upon the merits of the plea of autrefois convict, after reversing the ruling of the lower court striking the plea from the record.
The grounds of the motion to strike out were exclusively formal, and did not, in any manner, involve the merits of the plea, which had never been passed on by the lower court.
Upon the overruling of the motion to strike out, which we hold should have been done, the State would be bound to demur, if admitting the facts the plea would be insufficient in law, or to put the plea at issue. The issues thus made should be passed on by the trial court before they can become proper subjects of our appellate cognizance. The demurrer, of course, would be passed on by the Judge; but if the plea went to trial on issue to the merits, such issue, being one of mixed fact and law, would be triable by jury.
*855We cannot assume original jurisdiction of these questions, but must abide tlie action thereon of the trial court, whose rulings, when made, will be reviewable on appeal.
Had not the counsel for defendant, in his original brief, devoted much of his argument to showing that his plea had merit and that he had been, therefore, damaged by the failure to consider it, we should not have been led into this error; but, nevertheless, the interests of sound jurisprudence require its correction.
It is, therefore, ordered that our former decree herein be annulled and set aside, and it is now ordered that the judgment and sentence appealed from be reversed, and the case be remanded to the lower court, to be there proceeded with according to law.