
    Columbia,
    
      November Term. 1814.
    The State vs. Samuel Wright, and others.
    Johnson, for the Motion,
    
    Hooker, Contra.
    ^™where defendant is acquitted.
    Indictment for nuisances, by intruding on the streets of York Village, and building piazzas in front Of their dwelling houses.
    The jury in this case, contrary to evidence, acquitted the defendants. This was a motion, by the solicitor, (Mr. Johnson) on behalf of the state, for a new trial, on the ground of its being a verdict against law and evidence; who contended that if the verdict had been against the defendants, and if it appeared that such verdict had been clearly against law and evidence, the court would most unquestionably have ordered a new trial — or if a case had been tried between citizen and citizen, and a verdict had been given either against law, or evidence, a new trial would be granted as a matter of right. And he observed that he saw no good reason why the same rule should not hold good between the state and the citizens. The scales of justice ought to be equal between the state and the citizens, as well as between two individual citizens; otherwise the state would not have the same justice done to its prerogatives and public rights, which are rendered to those under its jurisdiction.
    In reply, it was argued that this point had been determined in this court some years ago, in a case brought up by Mr. Solicitor Stark, from the district of Edgefield, where a verdict was against the state in opposition to very clear testimony, but a new trial was refused by all the judges; that the same point was not now open again for debate, otherwise there would be no end of crises in this court.
   Bay, J.

Upon the argument in this case, I confess I had a strong leaning in favor of a new trial, on the strong ground of mutual and reciprocal justice ; and the case from Edgfield, did not appear to me to come fully up to this case, for that was a larceny ; and it is a maxim of law that no one shall be tried twice for the same offence, or his life or person brought again into jeopardy, where there has once been an acquittal.

This, however, is the case of a misdemeanor, in which neither the life nor body cari be called in question ; only a pecuniary fine, and probably imprisonment till the'fine is paid. I was, therefore, under the impression that a greater latitude might be allowed in this latter case, than in cases of felony. But upon looking into the cases in the books, I find that the same rule holds good in all cases upon penal statutes, and upon indictments, and informations for misdemeanors, as well as felonies.

In the case of Seemour qui tam vs. Day, Str. 899. an action on a penal statute, the jury found a verdict for defendant, contrary to the direction of the judge; a new trial was moved for and refused, on account of the action being a penal one. 1 Burn. 316, to same point. So also on the statute against horse-racing, jury found a verdict contrary to evidence, yet on motion for new trial, it was refused. 2 Sir. 1238. 6 Bac. Tit. Trial, 647. So also upon indictments and informations for misdemeanors, the same rule of law prevails. 6 Bac. Tit. Trial, 675.

If the defendant on an indictment or information have been accquitted, the court will not grant a new trial, notwithstanding the verdict were contrary to evidence. 1 Sid. 154. Lord Raym. 63. 12 Mod. 9.

A new trial was moved for after an acquittal in an indictment for a libel, because the verdict was against evidence. And by the court, a new trial ought not to be granted, after an acquittal in a criminal case, unless the defendant has been guilty un^air practice.^ Salk. 646. The King vs. Bear.

So also in an information for a Riot, where defendant was acquitted, a new trial was refused, although the verdict was, in the opinion of the judge, contrary to evidence : because it did not appear that the verdict was obtained by any unfair practice of the defendant. I Show, 336. 12 Mod. 9 Bac. tit. Trial. 675.

For the reasons above given, and upon the authority of the foregoing cases, I am against a new trial in the case under consideration : and the more especially as no unfair practices have been alleged against these defendants.

All the Judges concurred.  