¶1The only question presented upon the record in the present case, is, whether the superior court erred, in adjudging the plea of the defendant in that court insufficient.
¶2That was a plea in abatement, founded upon the omission of the justice to appoint a guardian to assist the accused in his defense. It alleges that the court ought not to take further cognizance of, or sustain the complaint; and prays that the complaint may abate and be dismissed.
¶3The omission of the justice to make the appointment, was undoubtedly an error, rendering his judgment liable to be set aside upon a writ of error, but affords no ground for dismissing the-complaint and setting the accused at liberty.
¶4A minor, as well as an adult, may be prosecuted for a criminal offence, but as *the law considers the former incompetent to assert his rights, it makes it the duty of the court, before which the prosecution is carried on, to see that a guardian is appointed to assist the minor in his defense.
¶5*207Had the accused simply called upon the court to dismiss the appeal, as having been irregularly taken, a decision to that effect, would have left the judgment of the justice in full force until reversed upon a writ of error. But the effect of a judgment abating and dismissing the prosecution, would be to discharge the accused without subjecting him to any punishment, for the offence alleged against him.
¶6As the reasons assigned in the plea for abating the prosecution were insufficient, the demurrer to .it on the part of the state was well taken, and the decision of the superior court thereon was right.
¶7In this opinion, the other judges, Storrs and Hinman, concurred.
¶8Judgment affirmed.