1. The record shows that certain evidence was introduced for the State, and proceeds: "Upon the foregoing evidence there was, by agreement, a verdict of guilty, subject to be set (143) aside by the court, and a verdict of not guilty to be entered in case the court should be of opinion with the defendant upon either of the two points of law, one growing out of objections to the sufficiency of the indictment, the other growing out of a variance between the allegations and the proof."
The judge refused to disturb the verdict or to arrest the judgment. A new trial is moved for in this Court on the ground that there was no evidence of a scienter, that is, that defendant knew of the mixture of the sand with the turpentine. It is admitted that such evidence was necessary to justify the verdict. It is also clear that the judge professed to set forth all the evidence, and that there was none tending to establish the guilty knowledge. It is said for the State, however, that *Page 115 this objection was not taken below, and that, by the agreement, the verdict was to stand unless the judge should be of opinion with the defendant on one of the two given propositions, and that our consideration must be confined to those. We are of opinion that notwithstanding the objection was not taken below, it is open here under the circumstances. Upon a case agreed, or a special verdict, or a demurrer to evidence, under one of which heads this proceeding must come, if it appears that there was no evidence of a fact necessary to make the defendant guilty, this Court cannot affirm the judgment against him.
For the reason above there must be a new trial.
2. It is unnecessary to express any opinion as to the sufficiency of the indictment, as probably the solicitor will think it prudent to send a new bill.
3. We concur with the judge that the supposed variance was immaterial.
PER CURIAM. Venire de novo.
(144)