
    Esmon vs. The State.
    New Trial. In criminal cases can be had only upon that count of the indictment on which the prisoner was convicted. Although the same offence be charged in different forms Jn two counts of an indictment yet if the prisoner be acquitted upon one count and convicted upon the other, and a new trial is granted in general terms, he cannot again be put to answer that count upon which he was acquitted. Campbell vs. The State 9 Yerg., 333.
    Esmon was indicted, as stated in the opinion, in the circuit court of Monroe county. At the September term, 1851, Alexander Judge, presiding, he was convicted by the jury, and judgment rendered accordingly, whereupon he appealed in error.
    BRown, for the prisoner,
    cited Brice vs. The Stale, 2 Tenn., 254-5, Campbell vs. The State, 9 Yerg., 333-7.
    Attorney General, for the State.
   McKinney J.,

delivered the opinion of the court'.

This is an indictment under the 55th section of the penal code of 1829.

There are two counts in the indictment. The first charges that the defendant “unlawfully, maliciously, and feloniously did bite off the right ear of Samuel Ervin.” The second count varies the charge by stating, that he “ did bite off part of the right ear of said Samuel Ervin,” &c.

The defendant was tried, and found not guilty upon the first count, but was convicted on the second count. A new trial was granted, on the defendant’s motion, in general terms. And at the following term of the court, the defendant was again put upon his trial, upon both counts of the indictment, and was found guilty upon both. Upon this verdict, judgment was pronounced, that-the defendant be confined in the Penitentiary house in this Slate for the term of two years ; from which judgment he appealed in error to this court.

In putting the defendant to answer again on the first count of the indictment, of which he had been acquitted on the previous trial, the court erred.

Each count of an indictment is regarded as containing the charge of a distinct and substantive offence. And if, on one trial, the defendant be acquitted of the charge in either count, he cannot be again put in jeopardy upon that charge; no matter whether in point of fact, the offences charged be separate and distinct in their nature, or the same offence charged in different forms to meet the different aspects of the proof. This doctrine, and the reasons upon which it is founded, are fully discussed in Campbell vs. The State, 9 Yerger, 333.

As upon this ground, a new trial must be awarded, we omit, for the present, to comment upon the sufficiency of the proof, as set forth in the record, to establish the malice required by law to constitute the offence charged.

Judgment reversed.  