¶1delivered the opinion of the court.
¶2*115To this indictment for larceny the defendant pleaded in abatement in substance that it was found upon the testimony of the prosecutor, who was not sworn to .give testimony upon the indictment, but was summoned before the grand jury to testify as to offenses as to which the grand jury have inquisitorial power, and was sworn accordingly, and upon this examination testified in relation to this offense, and that afterward the indictment was drawn and found by the grand jury upon the testimony previously had by them in the manner stated. The jury were sworn to try the truth of this plea, and also to try the issue upon the defendant’s plea of not guilty. They found the issue on the plea in abatement in favor of the defendant, and the court thereupon discharged him, and the jury were discharged without rendering a verdict on the plea of not guilty — so far as appears, without the consent of defendant. The Attorney-General has appealed. The proof sustains the finding of the jury, which we' think was a valid plea.
¶3Judgment affirmed, but the prisoner should be held for another indictment, inasmuch as although the jury were sworn to try the defendant upon the plea of.not guilty, and discharged without his consent, the indictment not being valid, he may be indicted and tried again.