
    Archy Caldwell v. Commonwealth.
    Criminal Law — Reversal—Overruling Demurrer — New Trial.
    Where a judgment has been rendered in a misdemeanor case, reversal 'can not 'be had merely because a demurrer has been improperly overruled, or for error in granting or refusing a new trial. (Code of Practice, § 349, p. 659.)
    APPEAL FROM FAYETTE CIRCUIT COURT.
    December 18, 1872.
    
      Gibbon & Paulcomr, for appellant.
    
   Opinion by

Judge Pryor:

This court had repeatedly held that an indictment charging the defendant with having kept a tippling house is sufficient without specifying or alleging the facts necessary to' be proven in order to create the offense.

When a judgment has been rendered in a case for misdemeanor no reversal can be had because a demurrer has been improperly overruled, or for ah error in granting or refusing a new trial. Code of Practice, Sec. 349, page 659. We can not adjudge from' the facts whether the indictment upon which the defendant was found guilty was or not for the same offense contained in the indictment transferred to the district court.

It was certainly not the same indictment, and it seems to us that the defendant in order to avail himself of the right to be tried in a different tribunal, should have adopted the mode prescribed by the law of Congress on the subject.

The judgment of the court below is affirmed.

-, for appellee.  