1877. July Term. Stuart's Case. 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 1877. in the form of the indictment requiring the applicaJuly Term. tion of a different principle. Stuart's 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 offence, the verdict is entire, and a new trial reöpens the whole case upon its merits. The cases of Hale v. Commonwealth, 2 Hill (S. C.) R. 273; Morris v. 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 Daniel 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 Daniel referred to the cases of Ball v. Commonwealth, 8 Leigh 726, and Gwatkin's case, 9 Leigh 678, in both of which 1877. July Term. Stuart's Case. Stuart's Case. 1877. the accused was convicted of murder in the second July Term. 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 distinct 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 |