Is your application to have a nolle prosequi entered?
Mr. Hastings:—Yes sir; I enter a nolle prosequi.
Lore, C. J.:—We think you are entitled to enter a nolle prosequi in this case—The better practice is generally to order the jury to return a verdict of not guilty. Let a ,nolle prosequi be entered.
Thereupon the Deputy Attorney-General framed a new indictment against the defendant, charging therein that the stolen articles were the goods and chattels of the “Joseph Bancroft and Sons’ Company”; which indictment was returned “true bill” by the grand jury. And on the twenty-first of the same month Biggs, for the defendant, before the same Court as above, moved to quash thfe indictment on the ground that the defendant was put in jeopardy for the same offense in the case of the State vs. himself, being No. 38 to the May Term, 1906, citing:
Heard’s Criminal Pleading 281; 1 Bishop on Criminal Procedure 960; U. S. vs. Shoemaker, 2 McLean 114; State vs. Conner, 45 Tenn. 311; People vs. Barret and Ward, 2 Cain 305 (N. Y. *400Com. Law 437); Commonwealth vs. Tuck, 20 Pick. 356 (365); Mount vs. State, 14 Ohio 295. (302); State vs. Calendine, 8 Iowa 288 (290)); Knox vs. State, 15 South Eastern (Ga.) 308; Blair vs. State, 7 South Eastern 855.
Hastings,Deputy Attorney-General, replied; contending that the present indictment was a different one from the first indictment, the description of the company whose property was alleged to have been stolen being a different corporation from that laid in the first indictment, although the taking is averred in the same ' manner; that the cases cited by the counsel for the defendant did not apply to the case at bar; citing in support of his right to re-in - diet the defendant the following authorities:
Bishop’s Criminal Law, Sec. 1052; Clark Criminal Procedure 389; Hite vs. State, 9 Yerger 357 (Tenn.); State vs. Williams, 12 Southern 932, (La.); Thompson vs. Commonwealth, 25 S. W. Reporter 1059 (Ky.); Commonwealth vs. Clair, 7 Allen 525 (Mass.) People vs. Warren, 1 Par. Cr. 336; Commonwealth vs. Wade, 17 Pickering 395, (400.)
The Court held the matter under advisement until the twenty sixth of May, and thereupou rendered the following decision:
Lore, C. J.:—A majority of the Court, consisting of Judges Grubb and Pennewill, are of the opinion that the defendant Dougherty, was not in jeopardy under the original indictment within the contemplation of the Constitution of this State.
I do not agree with that view, but it is the view of the majority of the Court, and therefore the motion to quash is refused.