
    State v. Granville.
    
      Criminal law — Elections—Offenses relating to — Exceptions by prosecuting attorney~-Rractice — Sections 7061, 7305, 7308, Rev. Stats.
    
    1. In an indictment under section 7061, Bevised Statutes, as amended February 17,1881 (78 Ohio L. 30), it is not necessary to set out a copy of the poll-book or tally-sheet on which the offense was committed,- nor is the purport thereof required; it is sufficient to describe it by the designation “poll-book” or “tally-sheet,” and to aver that the defendant wrongfully and fraudulently changed, altered, erased, or tampered with a “name,” “word” or “figure” contained in such poll-book or tally-sheet, as the facts may require, setting forth the nature and character of the alteration made; and that it was done with intent to defeat, hinder or prevent a fair expression of the will of the people at an election.
    2. The purpose of the bill of exceptions by a prosecuting attorney to the decision of a court, for which provision is made in section 7305 of the Devised Statutes, is not to obtain a reversal of the judgment of the court in the case in which the bill is taken; its purpose is simply to determine the law to govern in a similar case. Sec. 7308, Bev. Stats.
    (Decided June 28, 1887.)
    Bill of Exceptions by the prosecuting attorney to the decision of the Court of Common Pleas of Franklin County.
    The grand jury of Franklin county, at the September term, 1885, of the court of common pleas of said county, presented an indictment against Algernon Granville and others, charging “ that on the 13th day of October, in the year of our Lord one thousand eight hundred and eighty-five, in precinct “ A ” of the thirteenth ward of the city of Columbus, and in the county of Franklin, and the state of Ohio, an election was duly holden, the same being authorized by the laws of the state of Ohio, at which election in said precinct H. J. Ossing, J. Hatcher and E. B. Adams acted as judges of said election, and A. L. Allis and C. F. Galloway then and there acted as clerks of said election; that then and there, at said election, George Hoadly was a candidate for governor,” to which is added the names of other candidates on the same ticket; and it then avers that, “ each of said candidates received votes at said election for the offices for which they were respectively candidates, and said election was duly holden under the laws of the state of Ohio, to elect officers for the various offices above named and for which the above named, candidates were respectively candidates. That then and there, after the closing of the polls at said election, the ballots cast thereat were duly counted and entered by tallies, upon tally-sheets provided according to law, and the number of ballots cast for each candidate was then and there enumerated ánd set down in figures, as is provided by law, on the tally-sheets aforesaid; that within three days thereafter one of the poll books of said election, and one of the tally-sheets aforesaid made up by said judges and clerks at said election, as provided by law as aforesaid, was deposited as required by law with the clerk of the court of common pleas of said county, at his office in the city of Columbus, in said county and state ; that afterward, to wit: on the eighteenth day of October, A. D. 1885, in said county and state, Algernon Granville and others, did then and there, and before the time, as fixed by the law of said state, had expired for using said poll-book and tally-sheet in any contest of said election, wrongfully, unlawfully and feloniously change, alter, erase and tamper with the tallies and figures contained in said poll-book and tally-sheet of said election so held, canvassed and returned as aforesaid in precinct “ A,” thirteenth ward, city of Columbus aforesaid, as follows, to-wit: The number of tallies so entered and ballots cast and returned for George Hoadly for governor of said state, to-wit, two hundred and three, were so changed and altered, erased and tampered with as to read five hundred and three,” and so as to each of the candidates named. “ All with intent thereby then and there to defeat, hinder and prevent a fair expression of the people at said election so held as aforesaid in precinct “A” of the thirteenth ward, city of Columbus, county of Franklin, state of Ohio, on the said thirteenth day of October, A. D. 1885, contrary to the form of the statute in such case made and provided, against the peace and dignity of the state of Ohio.
    Cykus Huling,
    Prosecuting Attorney for Franklin County, Ohio.”
    
      A motion to squash having been made and overruled, the defendants demurred to the indictment, on the ground that it did not state facts sufficient to constitute an offense against the laws of this state. The court sustained the demurrer, and adjudged that “ the defendants be not required to further plead or answer to said indictment.”
    Thereupon the prosecuting attorney took a bill of exceptions, which is now prosecuted in this court “ for its decision upon the points presented.”
    
      Gyrus Hiding, prosecuting attorney, for the state.
    I. The indictment Aras good on general demurrer.
    The crime is described in “ apt words.” Sewell v. State Wright, 483.
    The defendants are not charged Avith altering a tally-sheet. The tally-sheet Avas only the instrument upon which the thing altered (the figures) was found. So it is only incidentally described. This comes plainly under section 7220 of the Revised Statutes.
    To be compelled to set out and prove, as laid, the tally-sheet in question, would be an impossibility, if it must be done as in forgery. Which tally-sheet is meant when a cojjy is asked for ? Is it the tally-sheet before alteration or after ? If before, we claim that it is impossible to make it, for the reason that no one can tell by inspection where the spurious begins. If after alteration, how is it possible to allege alteration of an instrument which hitherto remains unaltered?
    Besides, if this crime is to be proved as forgery, every alteration must be proved as laid, while according to the rule for which Ave contend, if any alteration is proved as laid it sustains the indictment. Baker v. State, 14 Tex. App. 332.
    But, in any vieAV, a sufficient reason for not attaching a copy of the tally-sheet is found in the fact that the form of a tally-sheet, to the minutest detail, is prescribed by law, and hence no averment can import greater verity than to say a “ tally-sheet made up as required by law.”
    
      The mischief to be remedied should be considered in construing statutory offenses and pleading under them. In forgery, the thing to be prevented is the putting in circulation false evidence of indebtedness. In this, to prevent the obstruction of the right of suffrage. The one is the alteration of an instrument — every part of it — because to alter a word is to alter all. In the other, the different parts of the instrument are disconnected, and the crime lies in the alteration of a word, name or figure, not in the alteration of the instrument.
    There is no authority for pleading an instrument, by copy, in an indictment, except when that instrument is alleged to be altered or forged. School District v. Dilman, 22 Ohio St. 194; Wisby v. Bonte, 19 Ohio St. 238; Burt v. Kentucky Trust Bank, 1 Dis. 30.
    The nature and cause of the accusation are sufficiently set out in the indictment. Turpin v. State, 19 Ohio St. 545.
    The crime is sufficiently charged even were the pleading construed by rules of common law.
    There is here such a description of a crime that the defendants know what they are to answer. That, if tried, a jury will be warranted in finding a verdict, and, if found guilty, the court will not be misled in inflicting the punishment. State v. Follet, 6 N. H. 53.
    It is not required that the rules of pleading süomd furnish a shield from punishment.
    II. This court has power to reverse the decision of the court below and remand the cause for further proceedings.
    Subject to the constitutional limitation that no man shall be twice put in jeopardy for the same offense, there is no distinction between the revision of the acts of inferior courts in civil and criminal cases, for state or defendant, unless that distinction is statutory. People v. Webb, 38 Cal. 467; State v. Daily, 6 Ind. 9; People v. Nestle, 19 N. Y. 583; State v. Fields, Mart. & Yerg. 140.
    It is the universal policy of the law of the various states in this country, almost without exception, that a criminal shall not be allowed to escape on account of errors committed in his favor save only when jeopardy has attached; and that is a question for the reviewing court. People v. Nestle, 19 N. Y. 583; People v. Bennett, 49 N. Y. 137; 19 Mo. 683; 49 Mo. 472; 52 Mo. 31; 52 Mo. 106; 59 Mo. 149; 62 Mo. 40; 69 Mo. 577; State v. Hamilton, 62 Ind. 409; State v. Lusk, 68 Ind. 264; People v. Webb, 38 Cal. 467; State v. Fields, Mart. & Yerg. 137; State v. Tolls, 5 Yerg. 363; State v. Smith, 2 Yerg. 280; State v. Daily, 6 Ind. 9; People v. Payne, 3 Denio, 88; People v. Taylor, 3 Denio, 91, 99; People v. Jackson, 3 Denio, 101; People v. Adams, 3 Denio, 190.
    There is no judgment in the case at bar. It is simply an order. Section 5310, Revised Statutes; Mayfield v. State, 40 Tex. 289; State v. Gregory, 38 Mo. 501. The exceptions may be filed before judgment undér section 7306, Revised Statutes. If the decision of this court is to become the law for similar cases, it may become the law for the same case if pending at the time of the decision. This couH has the power to render the decision the court below ought to have rendered, and, certifying that fact to the court below, order it to proceed.
    
      J. T. Holmes, also for the state.
    The hearing, submission and decision on the demurrer was a “ trial ” within the meaning of the word as used in section 7306 of the Revised Statutes. Jenks v. State, 39 Ind. 9; Tregambo v. Comanche M. & M. Co., 57 Cal. 505; State v. Brown, 63 Mo. 444.
    Final “judgment” has not been given or entered, and has no potential existence to be affected by the ruling of this court on the “ decision ” of the court below.
    It is nowhere provided in the statutes that before a prosecuting attorney can take a “ decision ” of the court of first instance to the supreme court for review, a final judgment must be entered in favor of the accused and he discharged.
    Section 7308 of the Revised Statutes is not necessarily involved, because there is no “judgment” to be affected by such reversal.
    If a “judgment” had been entered in favor of the defendants in the court below it could not, by reason of the limitation contained in this section, be affected in any wise. In such case tbe defendant must stand discharged. That is not the case before us. It is worthy of note that the general assembly used the words “decision” and “judgment” with manifest care and discrimination in these sections; the word judgment occurring but once, and that in section 7308.
    The limitation contained in this last named section is not to be enlarged by implication or interpretation. On its face it is a simple enactment of the common law doctrine or maxim: “No one shall be twice vexed,” etc.
    The effect of the reversal, by this court, of the decision below, would be to blot out, in a legal sense, the record of the ruling below. Mer. & Man. Ins. Co. Shillito, 15 Ohio St. 559; Williams v. State, 18 Ohio St. 46; Emery v. Irving Nat. Bank, 25 Ohio St. 360; Miller v. Sullivan, 26 Ohio St. 639.
    The case is not out of the common pleas. The final entry has not been made there. The indictment, pronounced insufficient, it is true, is still pending there. The only thing in this court is the question saved by the prosecuting attorney, with enough of the record to show all that bears upon the question made thereby. It happens to be the complete record.
    The defendants have never been “in jeopardy.” The plea of not guilty has not been entered, nor has the jury been sworn. Mitchell v. State, 42 Ohio St. 383; State v. Ray, 1 Rice (S. C.) 5; State v. Connor, 5 Coldw. 317; Williams v. Commonwealth, 78 Ky. 96.
    Two results of a reversal in such a case as this seem to flow from the language and spirit of this legislation and the fundamental principles of procedure:
    1. If ¿n acquittal at the hands of a jury has occurred and “ judgment” been rendered, the declaration of this court on the review of the prosecutor’s exceptions becomes the law of “ similar ” pending and future “ cases.”
    2. If exceptions of the prosecutor to interlocutory “decisions” are brought to the supreme court — no final “judgment” being entered in the court below — and the decisions reversed, the indictment still pends in the lower court, and in the further progress of the case that court is bound by the reversals, duly certified to it.
    
      R. A. Harrison, in support of the decision.
    I. The object and legal efect of such a proceeding as this are plainly declared in sections 7307 and 7308 of the Revised Statutes.
    The question is, do the facts stated in the indictment constitute an offense punishable by the laws of this state ?
    The indictment is attempted to be founded upon that clause of section 7061 against wrongfully “ changing, altering, erasing or tampering with any name, word ox figure contained in a poll-book, tally-sheet, ” etc. The other clauses of the section define other offenses; and section 7060 makes it an offense to unlawfully falsify any ballot cast or voted.
    It is necessary to understand what is meant by the words “ the facts stated ” in an indictment which charges an offense punishable by law. It is settled that they mean a complete description of such facts and circumstances as will constitute the crime. The manner óf the whole fact must be set forth, so as to enable the court to determine from the face of the indictment whether all the ingredients of the crime are set out, as well as to inform the accused of the precise charge which he is required to meet. A statement of the legal result of facts is not a statement of facts. An indictment accusing generally does not state facts which constitute a crime. Inferences from facts are not facts. Fouts v. State, 8 Ohio St. 98, 113; Davis v. State, 7 Ohio, 205.
    If any one fact or circumstance, which is a material ingredient of the offense, as defined by the statute, be omitted, the indictment is bad in substance. If any one or more of the substantial ingredients or distinguishing constituents of the crime may be omitted, the written accusation required would become a mere snare by which to mislead and entrap the accused on his trial. Fouts v. State, supra; Lane v. State, 39 Ohio St. 312.
    And while the legislature has the power to prescribe forms and dispense with many formal allegations in indictments, there is a limit to such power; and it is clear that there is no authority in the legislature to enact, or in the court to determine, that that shall be a sufficient indictment which fails to inform the accused of the offense with which he is charged. Lane v. State, supra; Lamberton v. State, 11 Ohio, 282, 284, 285; Dana v. State, 2 Ohio St. 91.
    Section 10 of article 1 of the constitution ordains, among other things, that no one shall be held to answer for a capital crime, unless on indictment of a grand jury; and that in any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; and to demand the nature and cause of the accusation against him, and have a copy thereof.
    
    Prior to the enactment of the criminal code, in 1869, it was necessary in an indictment for forgery to set out the instrument forged in words and figures; and this rule prevailed if the forgery consisted in the alteration of a true instrument. McMillen v. State, 5 Ohio, 269; Stephens v. State, Wright, 73; Dana v. State, 2 Ohio St. 91; State v. Bryant, 17 N. H. 323.
    Section 7218, Revised Statutes, provides that it shall be sufficient, in an indictment for forgery, to set forth the “purport and value ” of the instrument alleged to have been forged. The word “ purport ”, as used in this section, has a settled signification. It denotes the substance of an instrument as it appears upon the face of it to every eye that reads it, and not its legal effect. 2 Arch. Cr. Pr. & Pl. (8th ed.,) 1568; Whar. Am.Cr.L.sec. 728; 2 Russell on Crimes, (9th ed.) 803; Dana v. State, 2 Ohio St. 91; Fogg v. State, 9 Yerg. 394; State v. Atkins, 5 Blackf. 458.
    The general assembly intended nothing more by section 7218, of the Revised Statutes, than to dispense with the necessity of setting out an exact copy of the instrument alleged to have been forged, and to provide that in an indictment for forgery, instead of giving an exact copy, it shall be sufficient to describe the instrument alleged to have been forged, by setting forth all its substantial particulars, as disclosed upon its face; and to allege also its legal effect. The word value in section 7218 is used in.the sense of “ effect ” or “ import, ” and not in the sense of “ worth in money. ” Chidester v. State, 25 Ohio St. 433.
    
      An indictment for forgery must, therefore, still contain such positive and direct allegations of fact as that from them alone the court can determine what were the facts upon which the grand jury founded their conclusion that an instrument which can be the subject of forgery has been in fact forged. To enable the court to determine that question, the instrument must be fully described;' that is to say, its substantial particulars as disclosed upon its face, must be set forth..
    It is well settled that when the purport of an instrument is set out in an indictment the instrument offered in evidence must appear on its face to be as stated in the indictment. Downing v. State, 4 Mo. 572; 2 Russell on Crimes, (9th, ed.) 803; Reading’s Case, 2 Leach, Cr. Cas. 590; 2 East P. C. c. 19s. 56, p. 981; Commonwealth v. Kearns, 1 Virg. Cas. 109; State v. Harris, 5 Ired. (Law) 294; 2 Arch. Cr. Pr. & Pl. (8th ed.) 1568; Whar. Cr. Pl. & Pr. (8th ed.) 169.
    An indictment which charges that a tally-sheet was changed or altered, does not describe the instrument; the substantial particulars of the instrument styled a tally-sheet, as disclosed upon its face, are not set forth; and, therefore, it does not state facts which show that an offense has been committed. Such an allegation is not an allegation of fact. It merely states, as Birchard, J. said in Lamberton v. State, supra, a conclusion of law, predicated upon a supposed state of facts.
    If any one is indicted for falsely making, altei’ing or uttering a bank note, an exact copy of it need not be set out; but the note must be described; to call it a bank note is to give it a name, not to describe it. Lamberton v. State, supra.
    The facts stated in the indictment do not, therefoi’e, constitute an offense punishable by the laws of this state. The court cannot determine from the facts stated that the instrument alleged to have been altered is such an instrument as is the subject of the crime of forgery. The indictment does not set forth the “purport” of either the poll-book or tally-sheet to which it alludes.
    II. An indictment which does not state facts that constitute an offense, with such certainty as that on its face the court can, irrespective of iegal conclusions or inferences contained in it, determine whether an offense has been committed, docs not contain facts sufficient to show that a crime has been committed. And upon that ground also this indictment is bad on demurrer. Lane v. State, 39 Ohio St. 312.
    III. The indictment does not allege that the instrument alleged to have been altered was signed and attested and certified, as required by sections 2956 and 2960 of the Revised Statutes.
    IY. Even if the indictment had seth forth the “ purport ” of the instruments called a poll-book and a tally-sheet, so that it would not have been fatally defective on that ground, it would, nevertheless, have been bad in substance, for the reason that it does not state facts showing that any “ name, word or figuro ” in either of the instruments, was “ changed, altered, erased or tampered with.”
    Y. The provision contained in the last clause of section 7215, Revised Statutes, that, “no indictment shall be deemed invalid * * * for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits, ” received a construction in Lane v. State, 39 Ohio St. 312, where it is held that the defects mentioned in that section relate to matters ofform, and that the words quoted apply only to such matters as are ejusdem generis with those comprehended in the preceding part of the section. See, also, Shultz v. Cambridge, 38 Ohio St. 659.
    The defects in the indictment are not merely formal defects of the character mentioned in section 7215; hence, the indictment cannot be sustained under that section.
    Section 7218 requires that the purport of the instrument alleged to bo forged must be set out. This shows that, in the judgment of the general assembly, unless the purport of such instrument is set out, the court cannot determine whether it appears on the face of the instrument that an offense has been committed; and it also shows that the accused may be prejudiced at the trial on the merits if the purport of the instrument be not set out in the indictment.
    "When the indictment for forgery does not describe the substantial particulars of the instrument alleged to have been forged, as they appear upon its face, the defect or imperfection tends to the prejudice of the substantial rights of the defendant upon the merits, for the reason that the indictment does not notify him, with certainty, of what he is to meet; that is, of the acts done, which it behooves him to controvert.
   Minshall, J.

The principal question arising upon this bill of exceptions is, whether the indictment was defective, in that it did not set forth a copy of the poll-book and tally-sheet, nor, as claimed, the purport thereof. It is claimed that section 7218 of the Revised Statutes, requires that this should have been done. But does that section apply to an indictment under section 7061, for wrongfully altering a “ name,” “ word” or “figure” upon a poll-book or tally-sheet? We think not. The language of section 7218 is: “In an indictment for falsely making, altering, forging, printing, photographing, uttering, disposing of, or putting off, any instrument, it shall be sufficient to set forth its purport and value.” It is apparent that this is intended to apply to such alterations and forgeries as are made punishable by section 7091 of the Revised Statutes, and those immediately following it, and does not apply to an indictment fpr wrongfully altering a name, word or figure upon a poll-book or tally-sheet. In forgery the offense consists in falsely making or altering any of the instruments named, with intent to defraud; under section 7061 it consists in wrongfully altering or tampering with a name, word or figure in or upon a poll-book or tally-sheet, with intent to defeat, hinder or prevent a fair expression of the will of the people at an election. A forgery affects the individual in his civil rights by working some fraud upon his rights of property ; wrongfully tampering with a poll-book affects the individual in his political rights, and is punished as a political offense, being a wrong done to each and every honest elector.

That section 7218 is intended to be limited according to the construction we have given it, will more clearly appear from the following sections, 7219 and 7220. Section 7219 is as follows: In an indictment for engraving or making the ' whole or any part of any instrument, matter, or thing, or for using, or having the unlawful custody or possession of, any plate or other material upon which the whole or any part of any instrument, matter, or thing was engraved or made, or for having the unlawful custody or possession of any paper upon which the whole or any part of any instrument, matter or thing was made or printed, it shall be sufficient to describe such instrument, matter, or thing by any name or designation by which the same is usually known.” The analogy of the cases, in which, by this section, it is sufficient in an indictment to describe an instrument by its usual designation, to an indictment for wrongfully altering a name, word or figure upon a poll-book, is apparent. And by the following section, 7220, this provision is extended to all cases when “ it is necessary to make an averment * * * whether the same consists, wholly or in part, of writing, print, or figures.” That this section can, without any violence to its terms, be applied to an indictment for altering the figures upon a tally-sheet, seems plain; and we see no reason why a more limited construction should be placed on it. The power of the legislature to prescribe the form of the indictment, and to dispense with certain matters of description, provided the nature and substance of the charge is preserved, is not questioned. Commenting on the provision in our bill of rights guaranteeing to an accused party the right to demand the nature and canse of the accusation against him.” White, J., said, in Turpin v. State, 19 Ohio St. 544: We do not understand that it was intended by this provision, to place the rules of the common law, prescribing the particularity with which offenses were required to be charged, beyond all legislative control. And where, as in this case, the indictment clearly informs the accused of the transaction for which he is called upon to answer, it is, we think, in this respect, free from constitutional objection.”

Nor do we perceive what ground there is, in this indictment, for claiming that it does not inform the accused of the nature and cause of the accusation against him.” Conceding the full force of all that has been said by counsel, of the importance of this constitutional guaranty, and it must be admitted, as we think, that an indictment which specifies, as this does, the particular alteration the defendant is charged with having made upon the poll-book of an election, is more definite and certain and more fully informs the party of the nature and cause of the accusation against him,” than would the general and indefinite indictment, permissible in an indictment. for forgery, that the party altered or forged a particular instrument, setting it forth according to its purport and effect. In the latter case he is simply informed that he is charged with the forgery or alteration of a certain instrument, but, in what particular, he is not informed; in' the former he is apprised that he is charged with making a specific alteration in a designated instrument; as, that he wrongfully changed the figures upon a poll-book and tally-sheet, indicating the number of votes returned as received by a particular candidate, from the number 203 ” to 503.” There is a precision in this charge that leaves no room for misunderstanding as to what the party is required to meet. The averments of this indictment show that the poll-book and tally-sheet on which it is averred the offense was committed, were made and kept at a certain ward in the city of Columbus, at the annual October election for state and county officers in the year 1885. The defendant was required to answer the charge of a wrongful alteration of the poll-book and tally-sheet made and kept in that ward at that election, and none other.

But it is strenuously argued that the poll-book with the tally-sheet should be set forth according to its purport at least, so that the court may bo able to determine from the instrument itself, whether the instrument is what it is alleged to bo that an averment to that effect is but a legal conclusion. If this be so, then, designating any thing by its approju-iate name is the averment of a legal conclusion. This cannot be so, or else legal conclusions are quite common in pleading, particularly in criminal procedure.

In an indictment for burglary it is sufficient to designate the building upon which the offense was committed by the name given it in the statute; and whether it is such or not, is a matter of proof; but the averment that the building is a still-house is not the averment of a legal conclusion, though, whether it is such a house or not, will depend upon the nature and mode of its use. Thalls v. State, 21 Ohio St. 233. And the same is true as to the subjects of arson, of horse-stealing, of altering ear-marks or brands on domestic animals, and many other offenses. So in Kerr v. State, 36 Ohio St. 614, Kerr had been indicted under the act of 1877 (now section 7079, Revised Statutes), for knowingly selling and conveying land by warranty deed, having no title. It was claimed on error, that the indictment was defective, for the reason that it did not set forth a copy of the deed, that the court might determine from the face of it whether the deed would have been of any legal force if Kerr had been the owner of the land. It was held otherwise, the court saying it was a question of proof, and not of averment.

The same can be said with equal appropriateness in this case: "Whether the averment that an alteration was made upon a poll-book, made and kept at the election designated, is accurate, must depend upon the proof offered at the'trial.

The state of Nebraska has a statute similar to our own, having in fact adopted section 7061 of our Revised Statutes as it existed before the amendment of February 17, 1881. In the work of Judge Maxwell on Criminal Procedure, the form of an indictment under the statute of that state as adopted from our own, is given; in which the poll-book is neither set out by its tenor nor purport. In the form given the offense is averred to have been committed upon the poll-book of a certain election at which certain persons were judges and clerks, designating the instrument simply by its name. Maxwell Crim. Proc. 456. We are unable to see why more should be required in an indictment of this kind. It conforms to accurate principles of pleading, and is commendable for its brevity.

We are asked, however, in case the exception is sustained, to remand the cause for further proceedings upon the indictment. This we are satisfied cannot be done. The purpose of this proceeding, as will appear from the sections of the statute under which it is had, is not, in any case, to obtain a reversal of the judgment of the court in the case in which the bill is taken; its purpose is simply to determine the law to govern in a similar case. (Sections 7305-6-7-8, Revised Statutes.) However desirable it might be that such jurisdiction should be conferred on this court, in cases where the decision below puts an end to the prosecution, without a trial upon a plea of not guilty, it cannot lawfully assume it, as it has only such appellate jurisdiction as is conferred by law, and no such jurisdiction, as that invoked, has been conferred on this court in criminal proceedings.

Exceptions sustained.  