#### STATE v. COUNCIL WEST.

When a defendant has once been tried and acquitted upon an indictment, good in form, no appeal lies, even though the acquittal is in consequence of the erroneous charge of the presiding Judge.

(State v. Tcvylor, 1 Hawks, 463; OreedWs Case, 63 N. C. 3^ep. 506 cited and approved.)

INDICTMENT for an assault, tried at Fall Term, 1873, of Cea-ven Superior Court, before his Honor Judge Clarice.

On the trial the defendant pleaded “ former acquittaland it appeared that he had been arrested upon a warrant issued by a Justice of the Peace in the township where the offence was committed, at the instance of the person upon whom it was alleged the assault was committed. That a jury was empan-neled and the trial conducted according to law; and that the jury on that trial returned a verdict of “ not guilty.”

No record of this trial was returned by the Justice to the Clerk’of the Court as required by the act of the Assembly, and after a diligent search no record thereof can be found upon the record book, or among the other papers of the Justice, who since the trial has died.

His Honor, holding that all things are presumed to be done rightly in the absence of testimony to the contrary, and that the case was properly cognizable before the Justice, instructed the jury to return a verdict of “ not guilty,” which was done, upon which the Solicitor appealed.

*264 Attorney General Hargrove, for the State.

H. G. Bryan, for defendant.

Bynum, J.

This case was argued as if it was here upon a special verdict, but upon looking into the record we find such not to be the fact, but that the evidence of the State and the defendant was submitted to the j ury, and the Court having charged them they returned a verdict of not guilty.

When a defendant in a criminal action has once been tried and acquitted upon an indictment, good in form, no appeal lies even though the acquittal, is in consequence of the erroneous charge of the Judge upon the law. No man shall be twice vexed for the same offence. State v. Taylor, 1 Hawks, 462; State v. Credle, 63 N. C., 506.

Per Curiam. *No error. Judgment affirmed.