
    
      The State v. Lewis, slave, property of Peter Hair.
    
    A trial ordered of a slave after two mistrials, is not a subject of appeal, until the trial be had.
    Generally an appeal does not lie from a Judge’s order ordering or refusing a new trial in the case of a slave convicted of a crime.
    
      On Appeal from an order of O’Neall, 3. Newberry, September, 1849.
    In July, 1849, the slave Lewis was apprehended and tried by a legally constituted Court, for burglary and assault and battery, with intent to commit a rape upon a white woman, upon the following affidavit of one Sarah Frasier, to wit: “ that on the 29th day of June last, between the hours of nine and ten o’clock at night, a negro man, that she has good cause to believe was the property of Major P. Hair, forcibly entered her house by breaking open the door, besides greatly alarming herself and two girls, Temperance Weedeman and Amelia Paysinger, and committed an assault on the former.; deponent further says she believes his intention was to commit a rape on one or both of the girls.”
    The prisoner was convicted of the second offence charged, and sentence of death was passed upon him.
    On application to O’Neall, J. in behalf of the slave, His Honor ordered a new trial.
    On the new trial the prisoner was' charged only with having committed an assault with intent to commit a rape upon a white woman. The Court were unable to agree upon a verdict, and the case resulted in a mistrial.
    His Honor then ordered that the Clerk should summon another Court for the trial of the prisoner. After this Court had entered upon the trial' of the case and had made some progress in the examination of the witnesses, one of the freeholders was suddenly called off to his dying wife, and by permission of the magistrate, left the box, and the prisoner was remanded to jail.
    
      At this stage of the proceedings, His Honor, after hearing counsel for the piisoner, and also for the State, made the following report and order. “
    O’Neall, J.
    In this case, on the 3rd trial, after the jury w,ere charged, one of the jurors was allowed to be discharged, on account of the sickness of his wife, and the prisoner was remanded.
    The prisoner’s counsel has insisted that this, as well as the former mis-trial, was an acquittal.
    On the part of the State, it is contended that the prisoner could not look back to the mis-trial which first took piace, after the new trial had been ordered, inasmuch as an order for trial had been made.
    That order was made under the supposition that there was no objection, but as I afterwards found the-prisoner’s counsel had'intended to make this question, 1 will not preclude him from it. Indeed, if there be any thing in it, the same objection arises under the mis-trial in the third attempt to try the prisoner.
    I do not think, when, as here, the Court cannot agree, that such a failure to agree, is an acquittal of the prisoner.
    The Act of 1839 directs that the judgment of the Court shall be signed by the magistrate, and at least four of the freeholders. If that number cannot agree, it follows, no judgment can be pronounced, and such a state of things is within l^e exception, mentioned in the /State v. McKee, and in the State v. McLemore; and according to those cases there has been no legal putting in jeopardy the life of the prisoner; and hence he cannot be acquitted.
    The State also insists that they could go back, beyond the first verdict, and set up again the charge for burglary.
    I do not think so; the prisoner was charged with two offen-ces on his first trial; burglary, and an assault with an attempt to commit a rape ; he was tried for both; the jury convicted him on the last, and of consequence being put in legal jeopardy for the first, the burglary, and the jury saying nothing as to that, he was thereby fully acquitted of it.
    As the question submitted for the prisoner is of the last consequence, and as it may be the owner may choose to appeal, I will appoint the time for the 4th trial, beyond the sitting of the Court of Appeals.
    It is ordered that the Clerk do summon a Magistrate, and eight free-holders, out of whom a jury of five are to be selected, for the trial of the said slave, on the charge of an assault, with an intent to commit a rape, at Newberry Court House, on Wednesday, 8th of January, 1850, at 10 P. M. No Magistrate or free-holder heretofore charged with or summoned for the trial of the case, is to be again summoned.
    The Clerk will endeavor, as far as possible, to select a Magistrate and fiee-holders, wholly unprejudiced. Neither he nor the sheriff will suffer lists of the jurors to be taken by, any person ; the Clerk will notify the parties of this order, and will issue summonses for the witnesses for the State, and for the prisoner.
    The owner of the prisoner appealed from the order, and moved in the Court of Appeals to set aside the same, and that the prisoner be discharged, upon the following grounds:
    1st. Because His Honor erred, in deciding that the life of the prisoner had not been legally put in jeopardy, and that he could be tried again for the same offence.
    2nd. That on the trial of the 3rd of August, 1849, when it was ascertained that the number required by law to convict, could not concur in the conviction of the prisoner, he was entitled to an acquittal.
    3rd. That on the 5th of September, 1849, after the prisoner was put upon his trial, the Court was disorganized without his consent, and he was therefore entitled to his discharge.
    4th. That the prisoner has already been put in jeopardy of his life, for the offence for which His Honor has ordered him again to be tried, and according to law, he cannot again be put upon his trial for the same offence.
    
      Garlington, Attorney for the owner of the prisoner.
    The State also appealed, upon the ground:
    That His Honor erred in deciding that the prisoner could riot now be tried for the crime of burglary — the Court first organized, having passed by that charge, and given judgment only upon the charge of attempting to commit a rape, and that judgment having been set aside.
    
      Fair, Solicitor.
   Curia, per O’Neall, j.

In this case we are of opinion that the case is prematurely here. Upon the trial ordered, the result may be satisfactory. If it be not, then it will be time enough to appeal. The case of The State v. Nicholas, decides that there is no appeal on the part of the State from a Judge’s order granting a new trial, and pretty plainly intimates that his decision even against the prisoner’s application for a new trial, is also without appeal..

It seems to us the true view is that there is no appeal given or intended from the Judge who grants or refuses a new trial. In this case, however, until the prisoner is tried and he makes such defences as he pleases, and they are passed on by the Court of a magistrate and freeholders, and if overruled, and he should be convicted, and he applies for a new trial, and it is refused by one of the Judges — there is nothing on which this Court can act. The motions for the prisoner and the State are dismissed.

The whole Court concurred.

Motion dismissed.  