
    NOVEMBER TERM, 1844.
    The State of Mississippi v. Lorenzo D. Anderson.
    In criminal prosecutions, after a verdict of the jury and a judgment of acquittal, neither a new trial nor a writ of error can be granted the State.
    This was an application, by the District Attorney of the 7th Judicial District, made to this Court for a writ of error from a judgment of the Circuit Court of Hinds county, in a criminal prosecution, in which the jury found the defendant “ not guilty.” The application was made by the District Attorney on behalf of the State, in the following petition, to wit:
    
      To the Honorable the Judges of the High Court of Errors and •Appeals of the State of Mississippi.
    
    The petition of Franklin Smith, District Attórney of the seventh Judicial District of said State, respectfully showeth, That at a special term of the Circuit Court of Hinds county, begun and- held on the 4th day of March, 1S44, there came on to be tried before said Court on the 29th day of- said month of March, in the year aforesaid, a State prosecution against one Lorenzo D. Anderson, of the county aforesaid, for larceny ; that the indictment against said Anderson was found by the Grand Jury of said county at the June term of said Court, 1843, principally upon the testimony of one Theodore Yungher, a citizen of said county, whose name the undersigned, acting in his official capacity, marked upon said indictment as the prosecutor thereof; that upon the calling of said case at the special term aforesaid, on the said 29th day of March, the defendant, the said Anderson, and the prosecutor, the said, Yungher, upon being called came forward, together with all the witnesses for the State and the defence ; that after a jury was em-pannelled to try said case, and the clerk of the Court had in the usual form read the indictment to the jury, and stated to them that to this indictment the defendant pleads not guilty, the defendant, by his counsel, called on said Theodore Yungher to state to said Court whether he had ever consented to have his name marked on said indictment as prosecutor, or authorized the same, and whether he was in fact the prosecutor. To each of said interrogatories said Yungher answered in the negative, and stated that when said bill of indictment was found he did not go voluntarily before the Grand Jury, but did so in obedience to a summons. Upon being asked by the District Attorney whether the charge against said Anderson had not originated with him, he replied that he had stated in private conversation that said Anderson had stolen the colts (the averment in the indictment is for stealing two fillies from said Yungher) ; thereupon the defendant by his counsel moved the Court to discharge the prisoner and his bail, and quash said indictment for the want of a prosecutor. To this motion the District Attorney in behalf of said State, objected, but the said Court overruled the objection and quashed the indictment for the cause aforesaid, and discharged said Anderson and his bail as prayed for. To this judgment of the Court in quashing said indictment, &c. the District Attorney tendered a bill of exceptions, which was duly signed, &c., and made a part- of the record. Your petitioner suggests that the Court erred in said judgment.
    1. It was error to quash an indictment for the want of a prosecutor when there was one marked on the indictment, by the proper officer, at the proper time, as required by the statute.
    2. The application if legal, and properly to be entertained at any time, came too late after the indictment had been read to the jury, and the plea of not guilty entered.
    3. The law requiring the District Attorney to mark the name of a prosecutor on an indictment, the presumption is that he did his duty, and if he did not the prosecution should not drop, but the person whose name is improperly marked should be left to' his redress against the District Attorney for damages by action at law.
    For these and other manifest errors in the judgment of said Court, your petitioner, in behalf of said State, prays a writ of error for the revisal and correction of said erroneous judgment by the High Court aforesaid.
   Mr. Justice Thacker

delivered the opinion of the Court.

This is an application made by the District Attorney of the 7th Judicial District, for a writ of error in behalf of the State, in a State prosecution.

Our statutes do not expressly grant the State a writ of error in criminal prosecutions, after a verdict of a jury and judgment of acquittal, nor has such been the practice in this State. Any such practice would seem to contravene that provision of the Constitution, Art. 1, s. 13, which provides that “ No person shall, for the same offence, be twice put in jeopardy of life or limb.” Upon, the plea of “ not guilty,” the accused puts himself upon the country for his deliverance, and when so found by a jury, it must be considered to be final. No new trial can be granted by our laws, after such a result, which is the only judgment which could be made upon a writ of error. The adoption of the practice of permitting the State writs of error in criminal prosecutions, would work a.vexatious hardship that is repugnant to the principles of criminal justice. 6 Yerger, 360, The State v. Solomons. Besides, the statute, H. & H. 725, s. 20, which provides that when-a defendant shall have been acquitted on trial, on the merits and facts, he may plead such an acquittal in bar of any subsequent accusation of the same of-fence, taken in connexion with another provision of the same statute, H. & H. 725, s. 19, which provides that when a defendant shall have been acquitted of a criminal charge upon trial, on the ground of a variance between the indictment and the proof, or upon an exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same offence, affords not only the defendant a complete protection from the vexation of a writ of error in favor of the State, but also gives the State an ample remedy by re-indictment,, when the defendant escapes justice by any informality of the proceedings, and without a, trial upon the merits of the case.

The application is therefore overruled.  