It is plain that, upon the reversal of a conviction, the prisoner ought to be discharged in all cases, where the indictment fails to set forth any offence against the law, (Stith vs. The State, at the present term,) or where the statute, under which he is indicted, is unconstitutional, (Washington vs. The State, also at this term;) and such was the effect of the reversal in Hughes vs. The State, (1 Eng. 134.) And so the defendant ought to be discharged by this court whenever the judgment is reversed by reason of any such defect of form or substance in the indictment, for which the judgment might or ought to have been arrested in the court below, though in such cases, as we have seen, another indictment may be preferred, because an accused is only in jeopardy upon a good indictment.
But wherever the conviction is sought to be reversed because of some error in the proceedings, of which, without the statute, the prisoner could not have availed himself by motion in arrest, and which he can only place upon the record by means of his bill of exceptions allowed by the statute, and of which he could not have availed himself by motion for new trial at the common law, where the doctrine of jeopardy had its origin, because of any error or irregularity in the proceedings upon a valid indictment, we must conclude that it is no violation of his constitutional right to remand the cause upon reversal to be again tried on the same indictment. If, before the passage of the statute allowing appeals and writs of error in criminal cases, the prisoner could have a new trial, and urge in support of it matters de hors the record, it would only have been done by virtue of the humane extension by the courts of this country of a power never exercised in England, and then a decision against the motion would be final without the benefit of revision by the appellate court. If the judgment was arrested, the accused might be indicted again, so if acquitted for a variance, without doing violence to the common law doctrine of jeopardy. But if an accused, by reserving his exceptions without moving for a new trial, is entitled to be discharged upon a reversal on error, for any irregularity in the proceedings, there would be no warrant in law to indict him
