It appeared by the records in this case that the trial proceeded without a plea by the prisoner, and this, being urged against, the judgment in the case, we think *69a new trial should he granted. “Until the defendant has plead to the indictment there was no issue to be submitted-to the jury, and the omission to plead is fatal to the judgment even after verdict.” People v. Gaines, 52 Cal. 481; Douglass v. State, 3 Wis. 820; State v. Saunders, 53 Mo. 324.

Sloan, J., concurred.