
    The State vs. Curle.
    December 13.
    íCriminaEi law. Acquittal. In all criminal cases, of every grade, if the defendant be acquitted by the jury, though the acquittal may have been occasioned by the error of the court, the defendant must be discharged of the offence alledged against him in that indictment.
    "SAME. Practice — no appeal by the state in such case. If the state appeal in such case, the cause will be stricken from the docket of the supreme court for want of jurisdiction.
    The grand jury of Hickman, at June term, of the circuit kiourt, presented — “That the defendant, on the lbthof June, 1S37, and on divers days, before and since, in the county aforesaid, with force and arms, was openly, publicly and notoriously drunk, to his great degradation and scandal, and to the evil example of all others,” &c.
    On the trial, it was proved on behalf of the state, “that the defendant was openly, and publicly, and notoriously drunk, on the day charged in the indictment, in the town of Centreville, in the county of Hickman,” which was all the evidence.
    Martin, Judge, charged the jury — “that to authorise them to find the defendant guilty under said indictment, the evidence should show, that the defendant, on more occasion than one, within twelve months, prior to the finding of the indictment by the grand jury, was openly and publicly drunk rn the county of Hickman.” Verdict, “not guilty.”
    The solicitor for the state excepted to the opinion of the court, and appealed in error.
    No counsel appearing for the defendant,
    the Attorney General submitted the following brief — 1. The charge of the judge was erroneous. Tipton vs. The Stale. 2 Yetv 542.
    2. Bui the- main question here is, can a new trigl be granted on behalf of the state or public prosecutor, in any case, the defendant being acquitted?
    December 14.
    Note. See post, Smith vs. The State.
    
    That it cannot, see Rex vs. Praed, 4 Burrow, 2257.
    In the People vs. JUcither, 4 Wendell, the court say— “The right oí the court to grant a new trial in case the defendant has been acquitted, where the ground of the application is, that the finding is against e.idence, it is conceded, does not exist; but whether a new trial can be granted where the acquittal has resulted from the error of the judge in stating the law to the jury, seems to be involved in much doubt.” 266. This distinction is stated by the court in The King vs- Mann, 4 Maulé and Selwyn, 337, and by counsel in The King vs. Raynell, 6 East, 313 — see note there.
    In Wilson vs. Restall, 4 T. R. 753, a penal action, Ld. Kenyon said — “Where a mistake of the judge has crept in, and swayed the opinion of the jury, I do not recollect a single case in which the court has ever refused to grant a new trial.” But he added — “All the cases of indictments, I lay out of the ease, because they are ciiminal cases, and are exceptions to the general rule,” p. 758.
    In The King vs. Reynell, Maryatt admitted that he had not been able to find any instance where the court had granted a new trial in .case of a misdemeanor where the verdict was for the defendant. 6 East, 315. Nor have I. The only case in which I have seen even doubt expressed is that cited from 4 Wendell.
   Reese, J.

delivered the opinion of the court.

Upon the authority of the cases produced by the attorney general, and the long and well settled practice of all the courts in this state, we are satisfied, that the state in such a case as the one before us, has no appeal.

Let the cause be stricken from the docket, and the cost be certified to the county court of Hickman for allowance.  