
    THE STATE VS. THE COMMISSIONERS OF CROSS ROADS.
    Where, on an indictment containing two counts, the defendants were convicted on but one, on a new trial ordered at their instance, the defendants may be tried again on both counts. The case stands as though it never had been tried.
    
      Before Mr. Justice Butler, at Charleston, January Term, 1836.
    Indictment for nuisance. The indictment contained two counts : the first was for obstructing a public street; and thé second for inclosing ^ public square, bounded on one side by the said street. On the trial of the case at May term, 1836, the jury found the following verdict: “ We find the defendants guilty on the second count.” From this verdict the defendants appealed, and the Court of Appeals ordered a new trial, (vide ante.) On the trial of the case at this term, the defendants objected to evidence in support of the first count, on the ground that the finding of the jury on the second count was an acquittal on the first. His Honor overruled the objection. The jury not being able to agree, a juror was withdrawn by consent, and the jury discharged. Defendants then moved for leave to enter up judgment of acquittal on the first count, which was refused, and they appealed, and now renew their motion, on the following grounds :
    1. That the finding of the jury is substantially an acquittal on the first count of the indictment, and the defendants cannot again be tried on that count.
    
      2. That the decision of the Court of Appeals goes only to order a venire de novo, for the trial of the second count.
   Curia, per

JBdtler, J.

The defendants were indicted for obstructing a public street, and also for obstructing a public square, commonly called and known by the name of Wragg square. Whether the street is distinctly separate from, or forms a part of, the square, is not established by the verdict of the jury, that found the defendants guilty on the second count; neither does it appear from the testimony, with sufficient clearness to enable the court to form a satisfactory judgment on the whole pase. It may be that the street forms a part of the square, or it may be ¡that it is defined by marked and recognized limits, so as to make the offences essentially different to obstruct one or the other. The issues made by the indictment may be so connected that it is necessary to find on both, before there could be a final judgment on either; and if so, the verdict found by the jury was imperfect, and a venire facias denovo should have been awarded ; so that a new jury might have found on all the issues, and established all the facts. The defendants were found guilty only on one count, and upon appeal, the verdict was set aside, and a new trial .ordered. The verdict was set aside in favor of, and at the instance of, the defendants, who were found guilty. There is nothing on the record that could avail them by way of plea in bar to another prosecution. If-the verdict of guilty had remained, it would have protected them, perhaps, against another indictment for the same offence. As long as the verdict of guilty remained on the record there was a finding; but what proceeding is there now on it?. '-I consider all the proceedings on the indictment, since the finding by the grand jury, to be spt aside; and set aside at the instance, and for the benefit of, the defendants. The case stands as though it never had been tried. The defendants'contended that a verdict of guilty on one count, led to the conclusion that they were acquitted on the other; that is, that omitting to find on one count, and finding on another, is an exclusion of guilt to the extent not passed on by the jury. Such inference could not have been fairly drawn from what was' apparent on the record ; and the inference cannot be drawn when all the proceedings on the record are obliterated.-' If the defendants had moved to be discharged on the first count, when* the verdict was rendered, and had said to the attorney general, that they intended to appeal from the Verdict on the second count, the court would no doubt have refused to discharge them, either upon the ground that both issues were connected, or that.the defendants had never been tried on the first count. Indeed, the jury might have been instructed to find on the first count, before they were legally discharged from the whole case. In such a case the court would not have discharged the jury till they had found upon all that was submitted to them, unless the defendants had consented. There is no pretence for saying that the jury were discharged by the court, contrary to the consent of the defendants. The defendants obtained a new trial, on the implied' understanding that the whole case should go back and be tried and let it be tried on its merits. The jury can distinguish, if they choose, on thé final trial, between the two counts, if they contain separate issues, and find the defendants guilty of not guilty, according to the hature of the proof, and the extent of the issues.

James H. Smith, for the motion'. Attorney General, contra.'

The present motion is dismissed.

Richardson, Q’Nesi/l, and Evans, JJV concurred.

Ganít, J.

I am of opinion that the verdict of guilty pronounced in this case, on the second count, was'an acquittal o'n the first count in the indictment, and that the new trial ordered at the instance of the defendants found guilty on the second count, involved the subject matter of charge in that count only, and will not authorize a re-investigation'of the offence set forth in the first count, on which the defendants had' been acquitted.  