Futch v. State

A bill of exceptions will not lie to a judgment overruling a motion for a new trial in a criminal ease where the only trial had was upon the issues raised by a plea in abatement, the verdict being against the plea. There is no difference in principle between a verdict finding against a plea in abatement, and a finding against such a plea by the judge (where, by consent, he passes upon the plea without the intervention of a jury), and it is well settled that the striking of a plea in abatement is not a “final” judgment within the meaning of section 6138 of the Civil Code of 1910. McElroy v.…