
    *Stuart v. The Commonwealth.
    July Term, 1877,
    Wytheville.
    Absent, Anderson, J.
    5. Criminal Procedure — Verdict as to one Count — Effect.—It is settled law in this state, that where there are several counts in an indictment, and the jury find the accused guilty upon one of the counts, saying nothing as to the others, the verdict operates as an acquittal upon the counts of which the verdict takes no notice; and the court should enter a judgment accordingly.
    
      i£. Same — Same—Former Jeopardy.—In such a case, if the accused applies for and obtains a new trial, he does not thereby waive the advantage of the acquittal thus obtained. But he must be tried, and can only be tried again, on the count on which he was convicted, and not on the counts on which he has been before acquitted. And the rule is the same whether the new trial is granted because the verdict is contrary to the evidence, or because the verdict is so defective, or uncertain, that legally no judgment can be pronounced thereon.
    3. Same — 'Same—Same.—And the same rule applies where on an indictment for murder, the jury found the prisoner guilty of manslaughter, or on an indictment for malicious stabbing, &c., with intent to maim, disfigure or kill, the jury find the prisoner guilty of unlawful stabbing with intent to ldll.
    4. Same- — Verdict of Gnilty — Effect as to Other Counts. — Where there is but one count in an indictment on which the accused may be convicted of one of several offences which are covered by the indictment, the verdict of the jury finding the accused guilty of one of the said offences is a verdict of acquittal of all the others of a higher grade of offence: as on an indictment for murder, a verdict finding the accused guilty of manslaughter, is a verdict of acquittal as to the murder: and on an indictment for malicious stabbing with intent to kill, a verdict finding the accused guilty of unlawful stabbing with intent to kill is an acquittal of malicious stabbing. And the rule stated in No. 2 applies. Quaere: If this rule applies where on an indictment for murder the jury find the prisoner guilty of murder in the second degree.
    *5. Same — Same—Second. Trial. — On a second trial of the offence for which the accused was found guilty by the jury, if the jury find him guilty they may fix his imprisonment or other penalty at any period or penalty authorized by the statute, though it be greater than that fixed by the first jury.
    3. Same — 'Indictment.—Under an indictment with only one count, for malicious shooting, stabbing or cutting, with the intent to kill, the accused may be convicted of the offence charged, or of unlawfully doing such acts, or indeed, of any other offence— felony or misdemeanor — which is substantially charged in the indictment.
    7. Same — -Aeqinittal—Effect of Subsequent Quashing of Indictment. — The acquittal obtained by the first verdict is not affected, if the indictment under which it was found is afterwards quashed by the court on the motion of the attorney for the commonwealth; nor is the prisoner entitled to be discharged from prosecution on another indictment for the offence of which he was convicted in the first indictment, because that indictment was quashed; he would have every right under the second indictment that he had under the first, and no more.
    5. Same-Indictments — Bar.—The mere pend-ency of one indictment is no bar to another, even for the same offence; the accused cannot be tried on both, but the commonwealth may elect on which it will prosecute.
    9. Same — Jury — Verdict — Effect. — The discharge of a jury, after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity because it was not duly perfected, and thereupon set aside as insufficient, is no bar to a prosecution under the same or a new indictment.
    10. Same — Preliminary Examinations.— When a prisoner is arrested under a warrant of a justice, examined and committed to jail, and indicted and tried, and afterwards that indictment quashed and a new indictment found against him for the same offence, he is not then entitled to a new preliminary examination before a justice under the last indictment found against him.
    11. Same — Habeas Corpus.- — Where a prisoner has been carried to the penitentiary in execution of the judgment of the court below, and after that a ne'w trial is granted him by the court of appeals, the last named court will award a writ of habeas corpus, directed to the superintendent of the penitentiary, to bring the prisoner before it, and order him to be committed to the sheriff of the county in whicn the court of appeals is sitting, to be by him conveyed to the jail of the county in which the judgment of conviction was rendered, for the purpost of being again tried in conformity with the judgment of the appellate court.
    Robert Stuart was indicted in the county court of Washington at the July term 1876, for “unlawfully, ^maliciously and feloniously” assaulting one Leander Galliher, with intent to “maim, disfigure, disable and kill” him. There were two counts in the indictment, both charging the same offence. The second count was more specific as to the weapon used in the assault. The defendant demurred to the indictment; which was overruled, and the 'trial proceeded with on the plea of “not guilty” at that term. At that trial a verdict was found in these words: “We,- of the jury, find the defendant guilty of unlawful assault, and fix the term of his imprisonment in the state penitentiary for_ two _ years.” On the motion of the plaintiff in error this verdict was set aside and a new trial granted, and the cause continued until the August term of the court. At the August term, owing to the “mutilated” condition of the indictment, on the motion of the attorney for the commonwealth it was quashed. The plaintiff in error then moved the court to discharge him from custody, which motion was overruled, and he was remanded to jail, and the plaintiff in error excepted. At the September term the plaintiff in error was again indicted for the -same of-fence, the second indictment being the same in every material point as the first. The plaintiff in error then moved the court to b'e sent before a justice of the peace for a preliminary examination on this latter indictment (such examination was had before the finding of the first indictment), which motion was overruled, and the plaintiff in error excepted. He then offered two special pleas to this indictment: one of a former acquittal; the other setting out all the proceedings on the first indictment, and claiming that he could not be convicted under the second indictment. Both of these pleas were, on the motion of the attorney for the commonwealth, rejected by the court; and the plaintiff in error again *moved the court to discharge him, which the court refused to do. He then pleaded “not guilty.” A trial was had, and a verdict was found in these words: “We, the jury, find the prisoner, Robert Stuart, guilty of the malicious assault, with intent to maim, disfigure, disable and kill, and ascertain the term of his imprisonment in the penitentiary to be five years;” which verdict the plaintiff in error moved the court to set aside; but the court overruled the motion, and entered up judgment on the said verdict: to all of which rulings the plaintiff in error excepted, and filed his bill of exceptions. A writ of error was -awarded by the circuit court of Washington, and the judgment of the county court was affirmed by it. The plaintiff in error then obtained a writ of error from a judge of this court. The errors assigned are fully stated and discussed in the opinion of the court.
    
      Buchanan & Trigg, for the prisoner.
    
      The Attorney General, for the commonwealth.
    
      
       Criminal Procedure — -General Verdict-Bad Count. — In Richards v. Com., 81 Va. 110, the principal case is cited for the proposition that when *f two counts, the second is bad, but the jury find general verdict of guilty and fixes a punishment that could not be fixed under the first, the verdict must be set aside and a new trial awai^u and accused is entitled to acquittal under the first count as the verdict must have been under the second, citing also Mow-bray’s Case, 11 Leigh 674; Page v. Com., 26 Gratt. 943.
    
    
      
      New Trial — Former Jeopardy — Statute.—In Benton’s Case, 91 Va. 789, the court construing sec. 404, Code 1887, held that when an accused is convicted of an offence and applies for and obtains a new trial, he thereby waives his former jeopardy and subjects himself to further trial. And where more than one offence is distinctly or substantially charged in one count of an indictment, and there has been a verdict of conviction therein, which has been set aside and a new trial awarded, on such new trial the accused shall remain liable to be convicted of any offence charged in the indictment for which there is no severer penalty than for the offence of which he was convicted. See also, Briggs v. Com., 82 Va. 554.
    
    
      
      Same—Verdict on One Count — Effect as to Others.—In State v. Cross, 44 W. Va. 321, 29 S. E. 527, the court says: “The court should render judgment of acquittal in the counts on which he is not found guilty, though the verdict is silent as to them and if the court omits such judgment, the law enters it,” citing the principal case and Lithgow’s Case, 2 Va. Cas. 297; Bennett’s Case, 2 Va. Cas. 235; Kirk’s Case, 19 Leigh 627.
    
   Staples, J.

It is well settled law in this state, that where there are several counts in an indictment, and the jury find the accused guilty-upon one of the counts, saying nothing as to the others, the verdict operates as an acquittal upon the counts of which the verdict takes no notice, and the court should enter a judgment accordingly. Lithgow v. Com., 2 Va. Cases 297; Page v. Com., 9 Leigh 683; Canada’s case, 22 Gratt. 899; Page’s case, 26 Gratt. 943. It may be regarded as equally well settled, that in such case if the accused applies for and obtains a new trial, he does not thereby waive the advantage of the acquittal thus obtained. But he must be tried, and can only be tried *again on the count on which he was convicted, and not on the counts of which he had been before acquitted. The reason is, that the accused having been rightfully acquitted of one or more of several offences which have been joined in the said indictment, he cannot again be brought into jeopardy for these alleged offences, because, having been wrongfully convicted on another, he seeks and obtains redress against the wrong done him.

The attorney general did not seriously controvert this doctrine. He maintained, however, that the rule applied only in those cases where the new trial is granted, because the verdict is against evidence; and that it had no application when the new trial is granted on account of a defective verdict, which is in effect a mistrial.) In other words, if the finding is so defective or uncertain that legally no judgment can be pronounced thereon, it is a mere nullity, and the accused is precisely in the same condition as if there had been no trial; the whole case being again open for investigation upon its merits. The learned-counsel cited no authority for the supposed distinction in the two cases, nor have we been able to find any that sustains it.

It would seem to be clear, that whether the verdict be set aside because it is defective, or because it is contrary to evidence, the legal result must be the same. If, in the first case, the verdict is not severable, but is so entire, that to vacate the conviction necessarily carries with it the acquittal, the like consequences must ensue, whatever may be the ground upon which the verdict may be set aside. On the other hand if, where the finding is set aside because it is against evidence, the new trial is to be construed as applying only to the offence of which the accused is convicted, and not to *that of which he was acquitted, it must have the same effect where the verdict is set aside, because it is uncertain or otherwise defective. In neither case can the accused be put twice in jeopardy for the same offence as the price of his relief against an erroneous verdict. The case of Marshall v. Commonwealth, 5 Gratt. 663, is directly in point. There the indictment contained two counts, the first for malicious stabbing, the second for unlawful stabbing. The jury found the defendant not guilty under the first count, but “guilty of unlawful stabbing,” and fixed the term of his confinement in the penitentiary at five years; and judgment was entered accordingly. Upon a writ of error to the general court the judgment was reversed, upon the ground that the verdict was defective. But the general court in setting aside the verdict directed a new trial to be had only on the second count, upon which the defendant had been convicted. This decision is conclusive of this branch of the question. In the present case, upon the trial of the first indictment, the jury found the defendant “guilty of unlawful assault,” and fixed the term of his imprisonment in the penitentiary at two years. As this verdict, while it imposed the punishment prescribed for a felony, failed to find the intent necessary to constitute a felony, it was very properly set aside by the court. It is, however, manifest that the jury intended to find, and have in effect found a verdict of acquittal upon so much of the indictment as charges a malicious assault. Upon that part of the finding a judgment of acquittal ought to have been entered, and the new trial confined to the allegation of an unlawful assault, with intent to maim, disfigure, disable and kill. This is the necessary result of the doctrine in Marshall’s case, unless there be something *in the form of the indictment requiring the application of a different principle.

In Marshall’s case, as has been seen, the indictment contained two counts, one for malicious, the other for an unlawful assault. In the present case, the first indictment contained two counts, both, however, for malicious assault; the only difference being that one of the counts sets forth the instrument with which the injury was inflicted. Both counts must, therefore, be treated as one, so far as the grade of the offence is involved. It has been held in several cases that the same rules do not apply to a trial and acquittal upon an indictment with one count that govern in a trial upon an indictment with several counts. Thus, in the State v. Behimer, decided by the supreme court of Ohio, 20 St. R. 572, the indictment contained a single count for murder in the first degree. The prisoner being convicted of murder in the second degree, obtained a new trial. The question arose, whether upon such new trial the investigation should embrace all the charges in the indictment, or be confined to murder in the second degree. The court was of opinion that the verdict was severable only where there is a conviction or acquittal on several counts for different and distinct offences; and where there is but one defendant, and in fact but one of-fence, the verdict is entire, and a new trial re-opens the whole case upon its merits. The cases of Hale v. Commonwealth., 2 Hill (S. C.) R. 273; Morris State, 1 Blackf. R. 37; United States v. Harding, 1 Wallace Jr. R. 127, hold the same doctrine.

In Livingston’s case, 14 Gratt. 592, upon an indictment containing a single count for murder, the accused was convicted of voluntary manslaughter, and the *term of his imprisonment in the penitentiary fixed at one year. This court reversed the judgment for errors committed by the lower court in the progress of the trial. The question was presented, whether upon the second trial the accused might be tried and legally convicted of murder, or whether the charge to the jury was to be so modified as to limit the finding to the offence of manslaughter. Judge UaniEe took the ground that a party who has been erroneously convicted of manslaughter, and who has appealed to this court for redress, had the right to have his wrong remedied, without being put in jeopardy for a higher offence of which the jury has found the prisoner not guilty. He said, if there had been one count for murder and another for manslaughter, and a verdict of guilty on the latter count, taking no notice of the former, it would seem to be clear, under the authority of the cases, the cause would have to be sent back for another trial for manslaughter only. He asked, what difference it made that the verdict had been rendered on a single count for murder, instead of two counts, one for murder and the other for manslaughter. In either case, the verdict of manslaughter was as much an acquittal of murder as a verdict pronouncing his entire innocence could be. In support of this view, he cited a number of cases. Slaughter v. State, 6 Hump. R. 410; Hurt v. The State, 25 Miss. R. 378; Brennan v. The People, 15 Illi. R. 572; The People v. Gilmore, 4 Cal. R. 376; Jones v. The State, 13 Texas R. 168. He said he had seen no case holding a contrary doctrine, except the case of the United States v. Harding, 1 Wallace Jr. 127. in the circuit court of the United States. In the course of his opinion Judge DaniEt, referred to the cases of Ball v. Commonwealth, 8 Leigh 726, and Gwatkin’s case, 9 Leigh 678, in both of which *the accused was convicted of murder in the second degree. A new trial was granted; but the judgment of the general court in each case, directing a new trial, was general in its terms. In neither case was any question raised as to the character of the order to be made upon the new trial, nor does it appear the matter was in any manner brought to the attention of the court. The cases were, therefore, in Judge Daniel's opinion, not entitled to 'the weight of an express adjudication of the point involved.

The other judges sitting with Judge Daniel in Livingston’s case, without expressing any opinion upon the question, were in favor of remanding the cause for a new trial to be had on the indictment as it stands, and without any change in the usual charge to the jury.

The question must, therefore, be considered as still unsettled in Virginia. The decision of the general court in Ball’s case and in Gwatkin’s case cannot be regarded as binding authority in the present case, not only for the reason already stated, that the question, was not raised, but for another suggested by Judge Daniel, growing out of particular rules only applying to murder in the second degree. What is said by Judge Daniel on this subject may be seen by reference to his opinion.

Whatever may be the just rule when there is a conviction of murder in the second degree, which we are not called -on to discuss, it is generally conceded that when the indictment contains two counts, one for murder and one for manslaughter, which are distince offences, if the accused is acquitted of murder and convicted of manslaughter, and a new trial is granted him, he can only be tried the second time for the *of-fence -of which he was convicted, and not for that of which he was acquitted.

It will be seen, therefore, that the -whole argument turns upon a supposed distinction between an indictment which contains a single count, and on indictment containing two or more counts. It is difficult to believe the idea could ever be entertained that the most valued rights of the citizen are to be made to depend upon the number of counts a prosecuting attorney -may put in his indictment. The doctrine that liability to, or exemption from, punishment rests upon such a tenure in any case, illy accords either with the humane spirit of the law, or those - constitutional guarantees which define and protect individual rights. If the accused has been fairly acquitted of any offence, he-ought not' to be tried for it again, whatever may be the form of the proceeding against him. If there be anything valuable in the principle that “no man can be twice put in jeopardy for the same offence,” its efficacy should not be impaired by distinctions so technical and unsatisfactory. In most of the states this principle, is enforced by express -constitutional provision. The Virginia constitution, however, contains no. such, provision; but with us the maxim has all the sanctity of constitutional enactment, and is viewed by the courts with the greatest favor. If a party improperly convicted of an offence can only have the conviction set aside upon the terms of submitting to a greater wrong; if' an error can only be corrected at the price of surrendering a great privilege, and all this because the government has pursued its accusation one way, instead of another, the most valued rights rest upon a very feeble foundation.

In the State v. Martin, 30 Wisc. R. 216, 11 Am. Rep. 367, Judge Cole, in delivering the unanimous ^opinion of the court said: “A person already convicted may waive the constitutional protection against a second prosecution, and ask for a new trial to relieve himself from the jeopardy he is in. And when he does so, what ought to be the extent of his application? Is it to expose himself to the possible conviction of a charge of which he has been acquitted, or is it to relieve himself of one of which he has been convicted? It would seem that a bare statement of the proposition was sufficient to furnish the proper answer. The motion for a new trial could only properly apply to the crirne of which he has been convicted. The verdict for the purpose of determining for what offence the defendant may constitutionally be a second time tried, must be treated as -divisible in its nature.” These observations were made with reference to an indictment containing a single count for murder. Their justness and soundness must be conceded by all. If any other rule were established, as has been well said by a learned judge, no man will subject himself to the risk of being hung for murder, when convicted of manslaughter, and he will prefer, in many instances, although innocent, to rest under the conviction rather than to encounter the dangers of a second trial. . In every case where the timid and unfriended are involved, this will be found to be the result; and in times of high popular excitement, th-ose who may be bold in consciousness of innocence will hesitate long before they assume so great a risk and pay so fear ful a premium for the privilege of asserting their innocence. Murray C. J., in the People v. Gilmore, 4 Cal. R. 376.

In 1 Bishop on Crim. Law, sec. 676, in speaking of the doctrine “that no man is to be brought into jeopardy more than once for the same offence,” the author *proceeds to say: “If, therefore, the verdict which finds a prisoner guilty of part of the' charge against him, finds him not guilty of another part — as, for example, guilty on one count of the indictment, and not guilty on another count; or zvhere there is but one count, guilty of manslaughter, and not guilty of murder — and a new trial is granted him, he cannot be convicted, on the second trial, of the matter of which he was acquitted on the first.” The same doctrine is laid down by Wharton, who declares, upon a review of the authority, “The true view, however, is that when the major and minor offences are together before the jury, the defendant’s conviction of the second of-fence is an acquittal of the major, and is a bar to the further prosecution of the major.” 1 Wh. C. Law, sec. 556. In support of this position, the author cites decisions of the supreme courts of California, Georgia, Illinois, Iowa,_ Missouri, Mississippi, Tennessee, and Wisconsin, which may be seen by reference to his work.

The main argument generally relied on by those who take a different view of this question is, that a verdict is an entirety, and if that part of it finding the defendant not guilty be set aside, the part acquitting him is also necessarily set aside. It might, however, with equal propriety, be said that a verdict acquitting some of the defendants is an entirety; but there is no pretense for saying if it is set aside as to those convicted, it must share the same fate as to those acquitted. And so when the indictment contains several counts, it may be said the verdict is entire; and yet there is no question but that in such case the verdict is divisible. An indictment for murder is, in legal contemplation, an indictment for every offence of which the accused may be convicted under it. Tt is to be treated, for all practicable purposes, *as an indictment for manslaughter, as much so as an indictment for murder. The reason is, that it is not necessary to find all the allegations with reference to the attendant circumstances, but only so much of them as constitute a substantial offence charged in the indictment. The jury, in passing upon the homicide, may negative the averment of malice aforethought, and convict of manslaughter. In such case the lesser offence is merged in the greater. When, therefore, upon a conviction of the offence of manslaughter, the accused obtains a new trial, he is, in effect, tried the second time upon the indictment, as it is, precisely as though the indictment contained a count of manslaughter in addition to the count for murder.

Suppose the jury find the defendant not guilty of murder, in express terms, but guilty of manslaughter. This is, in effect, two findings — a verdict of acquittal of one of-fence, and a verdict of guilty of the other. If the court sets aside the verdict of conviction, the verdict of acquittal remains. The principle is precisely the same, as this court has repeatedly held, when there is a verdict of conviction as to one of the counts, and nothing is said as to the others. When the jury say the defendant is guilty of manslaughter, they affirm, and, in effect, find, by irresistible implication, he is not guilty of murder. What difference can it make in such case, whether there be two counts or one count, or whether there be two express findings, or one express and the other implied by law. In either case there is no difficulty in treating the verdict as several, with respect to the different offences. In either case, the granting of a new trial, on conviction of one offence, has no sort of connection with the verdict of acquittal of the other offence. the latter -'may well be allowed to stand and have effect, though the former should be set aside. It is said, however, that if the defendant is convicted of manslaughter, for example, and sentenced to imprisonment for one year, upon the second trial lie may be cnvicted and sentenced for five years; and thus he may be subjected to greater punishment on the second trial than is awarded on the first. This is undoubtedly true. But the conclusion intended to be deduced from it proves too much. Upon an indictment containing two counts — one for murder and the other for manslaughter — if the defendant is convicted of manslaughter, and acquitted of murder, it is conceded he can be tried again only for manslaughter; and yet his second conviction may result in a more extended imprisonment than the first. And so in Marshall’s case, the general court directed a new trial upon the second count; and yet the term of imprisonment for the offence, upon the second trial, might have exceeded what the jury awarded on the first trial. The truth is, the maxim that a man is not to be put twice in jeopardy for the same offence, is applied in reference to the nature of the offence, and not to designate the quantum of punishment.

It must be borne in mind, that in the case supposed the accused is net acquitted of the offence in respect to which he asks a new trial, but convicted. In applying for a new trial, he necessarily consents again to be tried for the same offence, with all its incidents and consequences. To this end his waiver operates, but no further.

Thus far the question has been considered with reference to prosecutions for homicide, because the cases decided and the principles involved apply directly to the case in hand. With respect to the *latter, however, there are considerations which do not apply to the former. While the practice has always been, in this state, to frame indictments for murder with a single count, it was otherwise until recently with respect to indictments for malicious assaults. Under the Code of 1819, the course uniformly pursued was to insert two counts — the one for malicious and the other for an unlawful assault. At the revisa 1 of 1849 a change was introduced, so that the commonwealth may now proceed upon a single count for malicious shooting, stabbing or cutting, with intent to kill, and under it may convict the accused of the offence charged, or of unlawfully doing such acts, or, indeed, of any other offence, felony or misdemeanor, which is substantially charged in the indictment. Canada’s case, 22 Gratt. 905. The object of this change in the law was to save the trouble of several counts, and to avoid the delays and mischief arising from the acquittal of the defendant upon mere variance between the allegations and proofs. It can hardly supposed it was the design of the legislature, even if it were competent to do so, to deprive the accused of any important rights which appertained to an indictment framed under the old law. If, upon an indictment containing two counts, the defendant, being convicted of the less offence, could not again be tried for the greater, he ought not to be deprived of that privilege, because, as a matter of convenience, the commonwealth may now proceed upon a single count in an indictment.

The courts would hesitate long before giving construction to a statute so utterly at variance with the rights of the citizen and the well regulated principles of criminal jurisprudence.

The attorney general has, however, argued that the ^petitioner is not entitled to the benefit of the rule in question, because the indictment upon whicli he was first tried was quashed with the consent of the petitioner. He is thus precluded from relying upon anything done under that indictment. In the first place, it does not appear that the petitioner gave his consent that the indictment should be quashed. It is very true he made no objection; he was not required to do so. All that he did was to call the attention of the court to the fact, that the indictment had become so mutilated he could not be safely tried upon it. The court, having inspected the indictment, was of the same opinion. Thereupon the prisoner, by his counsel, moved the court that he be discharged from custody; which motion the court overruled; to which ruling the prisoner excepted. The commonwealth’s attorney then moved the court to quash the indictment, because of said mutilation; which motion was sustained, and the indictment quashed, and the prisoner remanded to jail to await further action of the grand jury. This statement is sufficient to show that the prisoner did not give his consent to a single step taken by the court. It was for the court, and not the petitioner, to determine what course was to be pursued when the condition of the indictment was ascertained. But even if it appeared that the petitioner had agreed that the indictments should be quashed, such agreement could not be construed beyond a simple consent to a new indictment as a substitute for the former. Upon such new indictment the petitioner would have every right which justly belonged to him under the first. It cannot be supposed he thereby intended to surrender the protection of the acquittal already obtained upon the previous trial. Such a construction would be grossly unjust to the petitioner, as well as to the court *and the attorney for the commonwealth. It is obvious that the sole purpose was to place the petitioner in the same position he would have occupied if the indictment had not been so mutilated; to furnish clear and unmistakable evidence by the record, of the offence with which he was charged, and for which he was to be tried. If he was fairly acquitted, on the first trial, of the offence of malicious wounding, he could never be tried for it again, whatever might be the fate of the indictment. Although the indictment is out of the way, the verdict of acquittal still remains.

The petitioner, however, insists that he could not be legally tried under the second indictment, because he had once been tried under another indictment for the same of-fence, and he ought to have been discharged from custody upon quashing the first indictment.

This position is equally untenable with that of the attorney general. The petitioner was acquitted of a malicious assault, but of no other offence charged in the indictment. He was convicted of an unlawful assault with the intent alleged. Having moved for a new trial, he is conclusively presumed to waive any objection to being put a second time in jeopardy for that offence. All the authorities concur upon this point. The petitioner was therefore liable to be tried for any and every offence of which he had not been acquitted on the first indictment. It was a matter of no moment whether such trial took place on the first or on a new indictment. After the new trial granted, the commonwealth might have entered a nolle prosequi in the case, and have proceeded on a new indictment; or even while, the first was pending, a second indictment for the same offence might have been found, because the mere finding of one indictment is no bar to another, even for the same offence. The accused cannot *be tried on both, but the commonwealth may elect on which it will proceed; the better practice however being to withdraw the first, and proceed to trial on the second. In Gibson’s case, 2 Va. Cases 111, it was held that the discharge of a jury, after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity, because it was not duly perfected, and therefore set aside as insufficient, is no bar to a prosecution under the same or a new indictment. That case would seem to be conclusive of the question here.

The only remaining assignment of error to be noticed is, that the petitioner had not been tried before a justice, nor had any preliminary examination of the offence for which he was indicted. It appears from the certificate of the county judge that, previous to the finding of the first indictment on the 22d of July, the petitioner was arrested under a warrant of a justice, was examined for the offence and committed for trial, and two days thereafter an indictment was found against him. The petitioner having thus had his preliminary examination before the finding of the first indictment, and that indictment having been quashed under the circumstances already detailed, he was not entitled to another examination before a justice upon the finding of the second indictment. The latter was for the same of-fence as charged in the former indictment, and as already stated was intended as a substitute for it. This assignment was therefore not well taken.

But for the error already mentioned, I am of opinion the judgment of the county court is erroneous, and should be reversed, the verdict of the jury set aside, and the petitioner awarded a new trial. Upon such new trial he may be convicted of unlawfully cutting, *wounding, beating with intent to maim, disfigure, disable and kill, and sentenced to such term of imprisonment as is prescribed by the statute, in the discretion of the jury, whether the same shall or shall not exceed the period ascertained by the first verdict; or he may be convicted of any lesser offence substantially charged in the indictment. Canada’s case, 22 Gratt. 899.

But it appearing that the petitioner is now in the penitentiary, in execution of the said judgment against him, it will be necessary to have him brought before this court upon a writ of habeas corpus, and committed to the sheriff of this county, to be by him conveyed to the jail of Washington county, for the purpose of being tried again for the offence aforesaid, in conformity with the course pursued in Barber’s case, 2 Va. Cas. 122, and Jones’ case, 20 Gratt. 857. A writ of habeas corpus is therefore awarded accordingly, directed to the superintendent of the penitentiary, commanding to bring the prisoner before this court, &c.

Christian and Burks, Js., concurred in the opinion of StapeBS, J.

Moncure, P., dissented.

Judgment reversed.  