The opinion of the court was delivered by
Breaux, J.The State in this case appealed from an order sustaining a motion in arrest of judgment.
The defendant was prosecuted upon an information containing two counts. In one count-he was charged with having stabbed with intent to murder. Iu the other count with having wilfully and maliciously with a dangerous weapon inflicted a wound less than mayhem.
The verdict found was “ Guilty of wounding less than mayhem."
In due time the defendant applied for the arrest of the judgment on the ground that the verdict was not responsive to any of the offences charged or counts contained in the information, which, as before stated, the trial court sustained.
Motion to Dismiss the Appeal.
The defendant.in this count moved to dismiss the appeal for the reason that the court’s ruling, sustaining defendant’s motion in arrest of judgment was not a final judgment.
The judgment or ruling in our judgment operated prejudicially to *463the State, if the position'of the prosecution be correct; and, in addition as related to the verdict returned by the jury, it finally disposed of the question involved.
There remained nothing save the sentence. If an error of law has been committed by the trial judge in a matter purely of law, it would, in our view, be prejudicial to the proper administration of justice to let it remain unreversed.
The question is not res nova. It received the attention of this court in the case of State vs. Brabston, 38 An. 144.
The defendant concedes that this decision is not favorable to his motion to dismiss the appeal. That decision does not, in our view, stand alone. The question was considered in State vs. Cason, 20 An. 48, in which it was held that the right of appeal on questions of law, in criminal cases, is not so restricted as to warrant the denial of an appeal to the State from a ruling sustaining a motion in arrest of judgment.
The same question arose in the ease of State vs. Robinson, 37 An. 675. The court in the last cited case reconsidered the decisions and reaffirmed the right, citing State vs. Ellis, 12 An. 390; State vs. Ross, 14 An. 364; State vs. Taylor, 34 An. 978.
There is no question here of an acquittal by the jury. It veas a matter in which the judge alone acted. This distinction has been observed in a number of cases holding that the province of the jury is not infringed upon by the orders and judgment of the court of the first instance, not connected with the facts showing the guilt or innocence of the accused.
The defectiveness vel non of the jury’s verdict, presents questions of law, and as such they are reviewable when they come up, as in this case, on a motion in arrest of judgment, setting aside the verdict of a jury.
The judge is without authority to annul a legal verdict by arresting the judgment.
The State, in ease it be attempted, is not without remedy on appeal.
The appeal is, therefore, not dismissed.