
    The State of Iowa v. Shilling.
    1. WmiDEAWN counts. The defendant can not, on the trial of a criminal action in the District Court, on appeal from the judgment of a justice, be tried and convicted on counts in the information which were withdrawn in the trial below.
    
      Appeal from Washington District' Court.
    
    Tuesday, December 6.
    INFORMATION containing three counts, filed before a justice of the peace, charging the defendant with selling intoxicating liquors. Before, the justice, the first and second counts were withdrawn by the State, and defendant was tried and convicted under the third. On appeal to the District Court he was found guilty on the first and second counts, and from this conviction appeals.
    
      C. Ben Darwin zzFFGfeorge F. Darwin for the appellant.
    
      S. A., Bice, Attorney General, for the State.
   Wright, C. J.

This conviction was clearly irregular and unwarranted. The right of the State to again indict or file a second information for the offenses specified in the first and second counts, is not denied after entering a nolle prosequi as to them. But there is no principal justifying the trial of the defendant upon these counts after their withdrawal in the same proceeding, or on the same information. For this proceeding these counts ceased to have any vitality, any legal existence, and to try tbe defendant upon them, was to try him as it were without an indictment or information.

Judgment reversed.  