¶1dissenting. I have a natural repugnance to the mixing up' of criminal and civil proceedings and the inextracable confusion necessarily arising therefrom. The Code, says:
“Section 125. Remedies in the. Courts of justice are divided into (1) Action;,(2) Special Proceedings.”
“Section 126. An action is an ordinary proceeding in a Court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punisment or prevention of a public offence.”
“Section 121. Every other remedy is by a special proceeding.”
“Section 128. Actions are of two kinds, (1) Civil; (2) Ci’iminal.”
¶2We are told that the trial of a plea of former conviction is “a collateral civil inquiry.” What is a collateral civil inquiry ? Is it an action or a special proceeding ? It does not seem to me to be either, and, if neither, I see neither room nor warrant in The Code for its judicial creation. The ac*779tion at bar is certainly criminal, as the defendants are charged with, larceny, which may send them to the Penitentiary for ten years. I do not see anything civil about it, no' matter what definition of the term we may choose. It is true the defendants are already in the Penitentiary, serving a ten-years sentence for the same unlawful act, but it seems that it is not enough. This splitting up' of one act into two distinct offences can not meet my approval. It is illogical and dangerous, and frequently false; in fact, a mere creation of judicial speculation. The plea, of former conviction is neither an action nor a special proceeding. It is merely a defense to a criminal action, just as much so as the plea of not guilty. Either plea found in the defendant’s favor is just as effectual as the other, and, in fact, in some jurisdictions the defense of former conviction or acquittal may b'e shown under the general issue without being specially pleaded. P. Enc. PI. and Pr., 631. Pleas, being purely defensive and, therefore, having no independent existence, are governed in their determination by the nature of the action in which they are interposed. The fact that in many of them the burden of proof is imposed upon the defendant, does not turn them into civil inquiries. In trials for murder, the burden of proving self-defence rests upon the defendant, but surely it is not a civil inquiry. It is s'aid that “the plea of former conviction is not a plea upon the merits.” That is true in a moral sense, but it goes to the essence of the action. It is a plea in bar and not in abatement, and therein it differs materially from the plea of insanity as interposed in State v. Haywood, cited by the Court. If a defendant is insane at the time of the commission of the offence, he is irresponsible, and, therefore, not guilty of the crime. This is in bar. If, however, he becomes insane after the commission of the offence, his plea is in the nature of abatement and protects him only while he remains insane. State v. Pritchett, 106 N. C., 667; 10 Enc. *780Pl. and Pr., 1215, 1216. On the other band, the plea of former conviction, when sustained, is a complete bar to- any further prosecution. The defendant stands as fully acquitted, of the present charge as if there had been a verdict of not guilty. One is equally free, whether he has never owed the debt or has paid it. Upon such a finding he is entitled to his discharge, and when that finding is set aside he is again placed in jeopardy. I can not divest myself of the idea that a man is in legal jeopardy when he is in danger of being sent to the Penitentiary, nor can.I regard any proceeding that sends him there as civil in its nature. To say that an action itself is criminal, but that the defence thereto is civil, involves an inconsistency foreign to my opinion of the law. Erom my view of the. law, it would follow that the Court below had no power to set aside a verdict substantially of acquittal as being against the weight of evidence. I fully concur in the intimation of the Court that a nol. pros, should be entered below.