same indictment, and no result, beyond the decision of mere abstract questions, could be attained by the reversal. This, at least, was the true ground of decision, rather than the one assumed by the court, that the defendant, under the constitution, is shielded by the acquittal in any criminal case from all further prosecution for the offence with which he stood charged, and without noticing the distinction adverted to in The State v. Graham, between felonies and misdemeanors. It is upon that distinction only that so much of the decision in The State v. Quarles, at January term, 1853, as remanded the cause for trial anew, is to be sustained. But, in consequence of the decision in the case of The State vs. Hand, the act of December 20, 1846, was passed, making it the duty of this court to entertain and decide appeals and writs of error on behalf of the State in all criminal cases of whatever grade, so that the questions of law may be adjudicated, notwithstanding the acquittal of the defendant in the inferior court might be a bar to any further trial or prosecution for the same offence. The policy of this statute was to enable the State to obtain the opinion of the supreme court upon points of law or practice, which, so long as the defendants were acquitted, might continue to be erroneously ruled in the various circuits, and without intending to impair any constitutional right of the defendant in the particular case.
It seems not to have been doubted by this court in any case, that where the defendant being convicted, moved for a new tiial in the court below, and upon its refusal, prosecuted his appeal or writ of error, if the judgment be reversed by this court, the cause will be remanded for new trial, the refusal to grant which was the specific error complained of. But, apart from the case of Patterson vs. The State, (2 Eng. 59,) which cannot be regarded as an authority or precedent upon the question here involved, the court is, for the first time, to consider whether the defendant, in a capital case, is to be discharged or remanded for trial anew where he prosecutes his writ of error without having moved for a new trial in the court below, and where, in our opinion, the judgment ought to be reversed.
