(concurring)—I do not believe that the refined distinctions discovered and endorsed by the majority exist in fact, or are founded in reason, and hence they ought not to have any place in the practical operations of the law. To my mind the common sense idea is, that when a defendant convicted of murder or any other crime seeks and obtains a new trial, it is a new trial which is accorded him, and not a trial for some other crime, and that he should be compelled to enter into the new trial subject to the same penalties that confronted him on the first trial. The whole object in granting him a new trial is to insure him a trial freed from the errors which prejudiced him in the first. But, as the majority has found against the appellant on another proposition, I concur in the result.