The appellee was indicted in the Independence Circuit Court of the crime of embezzlement. The indictment, omitting formal parts, is as follows:
“1. That the said T. A. Gray, in the county and State aforesaid, on the-day of June, 1920, then and there being ever the age of 16 years, and being the agent of W. E. Lovell, and having in his custody and possession twelve bales of cotton as such agent, the property of W. E. Lovell, of the value of $1,713, did unlawfully, feloniously and fraudulently make away with, embezzle and convert to his own use- the said twelve bales of cotton aforesaid, without the consent of him, the said-W. E. Lovell, against the peace and dignity of the State of Arkansas.
“2. The said T. A. Gray, in the county and-State aforesaid, on the.day of June, 1920, then and there being over the age of 16 years, and being the agent of W.. E. Lovell, and having in his custody and possession the sum of $1,713, gold, silver and paper money of the United States of America, as such agent, the property of W. E. Lovell, of the value of $1,713, the said T. A. Gray being the agent of the said W. E. Lovell, as aforesaid, the said sum of $1,713 being the proceeds of twelve bales of cotton, the.property of W. E. Lovell, and in the custody of the said T. A. Gray, as such agent, did unlawfully, wilfully and feloniously and fraudulently make away with, embezzle and convert to his own use the said sum of $1,713, without the consent of the said W. E. Lovell, against the peace and dignity of the State of Arkansas. ’ ’
W. R. Lovell, a witness for the State, was introduced, and, after testifying as to his residence and occupation, was asked if he knew the defendant, and, upon answering that he did, was asked if, some time in 1920, witness turned over some cotton to the appellee a:s the agent of witness to sell, ■ and, if so, how much cotton he turned over to the appellee. Thereupon the appellee moved the court to require the State to elect on. which count of the indictment it desired to stand. The court sustained the motion, to which ruling the appellant duly excepted. The State thereupon elected to stand on the first count in the indictment, charging the defendant with the embezzlement of the cotton. The cause then proceeded to trial on that count. Various objections were made by the appellant to the rulings of the court as the cause progressed, in the admission and exclusion of testimony, but the conclusion we have reached makes it unnecessary to set out the testimony and discuss the rulings of the court concerning the same. After the testimony was adduced on behalf of the State, the appellee moved the court to instruct the jury to return a verdict of not guilty, which motion the court granted. The appellant duly excepted to the ruling. There was no motion for new trial, and no statement that the second count was intended to charge the same offense as the first count, but in a different mode, and no such statement is made in the record anywhere. From the judgment of the court discharging the defendant is this appeal.
We are confronted in limine with the question of whether or not this appeal should be dismissed. By this appeal the State undertakes to have the court decide two questions; first, whether or not the trial court erred in requiring the State to elect, and second, whether or not the court erred in directing a verdict of not guilty. The crime charged against the appellee, under the statute, is a felony and punishable by imprisonment in the State Penitentiary. Sections 2500 and 2488, Crawford & Moses’ Digest. The appellee was tried for the offense charged, and. acquitted by the verdict of the jury, under the direction of the court. He had therefore been put in jeopardy of his liberty, and cannot be put in jeopardy again for the same offense. Art. 2, § 8, Constitution of 1874. Sections 3410 and 3411 of Crawford & Moses’ Digest provide for appeals by the State. Section 3411 provides that, “if the Attorney General, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important, to the correct and uniform administration of the criminal law, that the Supreme Court should decide, he may, by lodging the transcript in the clerk’s office of the Supreme Court within sixty days after the decision, take the appeal.”
Both questions presented by the record in this case, upon which the State seeks the judgment of this court, are purely abstract questions of law, and it occurs to us that neither of them are important as a precedent to the correct and uniform administration of the criminal law. "What useful purpose could be subserved by determining the question presented by this record as to whether or not the court erred, under the peculiar facts, in compelling the State to elect on which count of the indictment it would prosecute? There is no warrant for the assumption that a similar state of facts will ever arise again, and, even if such were probable, in construing this statute neither .the Attorney General nor this court is justified in dealing with mere probability, and by bo doing allowing an appeal to be prosecuted by the State to elicit a decision, by this court on alleged erroneous rulings of the lower court, which decision is not important to the correct and uniform administration of the criminal law.
In the very recent case of State v. Spear and Boyce, 123 Ark. 449, construing the above statute, we said: “'It is clear that appeals in felony cases are not allowed by the State except in cases where it is important to have the court correct errors which prevent the nniform administration of the criminal law. Appeals are not allowed merely to demonstrate the fact that the trial court has erred. The question of the legal sufficiency of the evidence in a given case constitutes a question of law for the decision of the court, but it cannot become a precedent for application in another case because of the varying state of facts in different cases, and therefore the decision of that question, even though it be one of law, is not important in the uniform administration of the criminal law.” And in the still more recent case of State v. Mills, ante, p. 194, we held the statute granting to the State the right of appeal in criminal cases does not contemplate an appeal in a case where the only error alleged is that the court incorrectly decided that the evidence was not sufficient to warrant a submission of the issue to the jury. See also State v. Smith, 94 Ark. 368, where we said: “The object and purpose of this provision of the statute is to obtain the decision of this court upon questions of criminal law, so that it may serve to secure the correct and uniform administration thereof. But if the decision of the question presented by the appeal would not serve such purpose, then it would not be of sufficient importance, under this provision of the law, to render an opinion thereon, and the appeal should not, in such case, be entertained.” The doctrine of those cases rules this.
The appeal is therefore dismissed.