
    THE STATE OF MISSISSIPPI vs. ISAAC McGRAW.
    ÍNDlCTaiEKT FORSTEAMNC A SLAVE REFERRED FROM PlKE CIRCUIT COURT.
    An indictment for stealing a negro man, not called a slave, is insufficient. A trial and acquittal on an indictment for stealing a negro man, is no bar to a subsequent prosecution for stealing a negro man slave. A conviction or acquittal or an invalid indictment, is no bar to a second prosecution.
   OPINION OF THE COURT by the

IION. EDWARD TURNER.

It appears by the record, that • at the October Term 1823 of Pike Clr-ciut Court, the defendant was indicted for stealing a negro man,- on which charge he was tried on the plea of not guilty, and acquitted. At the same term he was also iqdicted for stealing one negro man slave, named'Emanuel, &c. of the goods find chattels of one William B. Ileatb, &c. On his arraignment, he pleaded a former acquittal for the same offence, to which the state replied nul tiel record of a former acquittal; and the court doubting the law, referred the cause to this court, on the issue of nul tiel record.

It appears by the record that the district attorney appeared to enter a nol pros on the first indictment, and informed the prisoner and his counsel, that he considered that indictment invalid, and had preferred another: and submitted to them, whether they would risk a trial on the first indictment — whereupon the prisoner and his counsel would not move to quash the first indictment, but claimed atrial by jury — a trial was had, and verdict for the defendant.

I am of opinion that the first indictment was insufficient to warrant a conviction, and on which no sonience could have been passed against the prisoner. It charges the prisoner with having stolen a negro man, no where called a slave in the whole indicthient; and it is obvious that the attorney of the state aimed at an indictment, under the statute, for stealing a slave. The authorities summed up in the first volume of Chitty’s Criminal Law, p. 453 &c. show clearly, that a conviction or acquittal on an invalid indictment, cannot be pleaded in bar of a second, or subsequent prosecution. Wherefore, let judgment be entered for the state, on the issue joined on the plea of auterjois acquit; and it is ordered that the cause be remanded for further proceedings in the circuit court of said county of Pike.  