State v. McGraw

Turner, J. :

It appears by the record, that at the October Term, 1823, of Pike circuit court, the defendant was indicted for stealing a negro man, on which charge he was tried on the plea of not guilty, and acquitted. At the same time he was also indicted for stealing one negro man, slave, named Emanuel, etc., of the goods and chattels of one William B. Heath, etc. On his arraignment, he pleaded a former acquittal for the same offense, to which the state replied nid tiel record of a former acquittal; and the court doubting the law, referred the case to this court, on the issue of nul tid record.

It appears by the record that the district attorney appeared to enter a nolle prosequi on the first indictment, and informed the prisoner and his counsel, that he considered that indictment invalid, and had preferred another, and submitted to them, whether they would risk a trial on the first indictment—whereupon the prisoner and his counsel would not move to quash the-first indictment, but claimed a trial by jury. A trial was had, and verdict for the defendant.

I am of opinion that the first indictment was insufficient to warrant a conviction, and on which no sentence could have been passed against the prisoner. It charges the prisoner with hav-iig stolen a negro man, nowhere called a slave in the whole iidictment; and it is obvious that the attorney of the state ained at an indictment under the statute, for stealing a slave. Tie authorities summed up in the first volume of Chitty’s Crim-iml Law, p. 453, etc., show clearly, that a conviction or acquit-talon an invalid indictment, cannot be pleaded in lieu of a second, on subsequent prosecution. Wherefore, let judgment be entered for the state, on the issue joined on the plea of autrefois acqtit; and it is ordered that the cause be remanded for further proeedings in the circuit court of said county of Pike.