The Attorney General in this case very properly conceded that there was error which would entitle the respondent to a new trial.
On the part of respondent it was urged that on evidence so inconclusive as in this case, no man ought to *509be convicted, and that the respondent, therefore, should be discharged on the ground that having once been entitled to an acquittal on "the merits, he ought not to be put in jeopardy again.
Without desiring to express any opinion whatever as to the impression produced upon our minds by this testimony, or what in our opinion would be the duty of a jury thereunder, we think the case is not so clear as to authorize this court to order the discharge of the respondent. The case should go back and be submitted to a jury, who under proper instructions can pass upon all the facts, giving to them such weight as they may consider proper.
Under the theory of the defense adopted in this case the court should have permitted full and searching enquiry to be made in reference to any supposed arrangements between the officers and. other parties complicated in this transaction.
The exceptions must be sustained and a new trial ordered.
The other Justices concurred.