#### Bond vs. The State.

The issue to a plea of not guilty to an indictment for assault and battery,' cannot, by consent of parties, be tried by the court. (Wilson vs. The Slate, 16 Ark. Sep.)

Appeal from the Circuit Court of Scott County.

Hon. Felix J. Batsoh, Circuit Judge.

Fowler & Stillwell, for the appellant.

JORDAN, Attorney General, contra.

Mr. Justice Scott

delivered the opinion of the Court.

This was an indictment for an assault and battery. The defen*291dant pleaded not guilty, and the State joined isáue. By consent of the parties, tliis issue was'tried by tlie court sitting as a jury. Upon hearing the testimony the court found the defendant guilty, and assessed a fine of ten dollars, rendering judgment accordingly.

The defendant moved in arrest of judgment, which, upon being overruled by the court, the defendant excepted, setting out all the evidence in his bill of exceptions, and appealed to this court.

The only point made by the appellant, is, that the issue joined can only, by the law of the land, be tried by a jury. The Attorney General makes no point in the case, conceding, as is true, that it is within the influence of the decision in the case of Wilson vs. The State, 16 Ark. Rep., decided at the last term.

The judgment must be reversed, and the cause remanded to be proceeded with.