Page:Stewart v. State.pdf/29

Rh stood as at the common law. Among the provisions regulating the proceedings on appeals and writs of error in criminal cases, are the following, (title Crim. Proceedings, sec. 236-7): "If the supreme court shall affirm the judgment of the circuit court, the sentence pronounced by such court shall be directed to be carried into execution, and the same shall be reversed, the supreme court shall direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case."

In the case of The State vs. Graham, (1 Ark. 432,) the opinion of this court was deliberately expressed that the statute allowing appeals and writs of error in criminal cases, was broad and comprehensive enough in its terms to include the State as well as the defendant, and the reasons are well given at length, for their conclusion that the legislature intended to extend the right equally to the State and the accused. But the authority of the case, as an adjudication on this point, is weakened by the fact that the indictment had been dismissed without trial in the court below for want of jurisdiction, and that the punishment of the offence was a pecuniary mulct only, not affecting life or limb, so that, as the court say, the question of jeopardy could not in any event be involved. In The State vs. Hicklin, (5 Ark. 191,) where after conviction of murder, the judgment was erroneously arrested in the court below, this court, referring to The State vs. Graham, declared the decided opinion that the legislature intended to confer the right of appeal in all criminal cases or prosecutions equally upon the State and the accused, and accordingly reversed the judgment, and directed the judgment of conviction to be reinstated and carried into execution in the court below. Though the actual adjudication in this case was right, it does not touch the question of jeopardy. But in the case of The State vs. Hand, (1 Eng. 169,) where the defendant was acquitted of felony, the court refused to entertain a writ of error brought by the State, because the defendant, although acquitted upon the ground of a variance between the indictment and proof, (Rev. Statutes, title Crim. Proceedings, sec. 242,) yet could not be tried again on the