delivered the opinion of the court.
In this case, the defendant filed a plea in abatement, to which the State replied, and the court, by consent of parties sitting as a jury, found the issue for the State, and gave judgment against the defendant for costs. In cases of misdemeanors the judgment of the court upon a plea in abatement is final. 1 Chitty Cr. Law, 451. If the plea is found against the defendant, the jury, or the court, if the case is submitted to the court without a jury, should fix the penalty,and the judgment of the court should be in accordance with the Verdict.
Inasmuch as the court only gave judgment for the costs without assessing and giving judgment for the fine, there is no final judgment from which an appeal will lie to this court. The case must therefore be dismissed to the circuit court, to be proceeded in to final judgment according to law.