#### STATE v. GEORGE EVANS.

Where, upon a mistrial, the defendant moves for his discharge, which, motion is refused, and he is required to give bail for his appearance at the next term, the Judge presiding at such next term, has no right to entertain the motion and° discharge the defendant. It is res aá¿u~ dicata.

CRIMINAL Action, tried before 'Moore, J., at December (Special) Term, 1875, of tbe Superior Court of Halifax county.

The defendant was indicted for larceny and pleaded not guilty. A jury was empannelled and #fter bearing the evidence, argument of counsel and tbe charge of bis Honor, Judge Watts, announced in open court that they could not agree upon a verdict. Tbe counsel for tbe State and for tbe prisoner were both present. The prisoner was absent, being, tben in jail.

TTis Honor, witbont having consulted the counsel for tbe:. prisoner, ordered a juror to be withdrawn and a mistrial entered. Prisoner’s counsel said nothing either for or against tbe order.

After the order was made and tbe jury discharged, his counsel moved tbe court, upon affidavit, to discharge tbe prisoner upon the ground:

1. That having once been put in jeopardy, be could not. again be tried for the same offence.

2. That tbe defendant was not in court when tbe order was. made.

Tbe motion was overruled and tbe defendant appealed.

At December (Special) Term, Moore, J., presiding, bis. counsel again moved tbe conrtto discharge tbe prisonerupon tbe «ame ground. The motion war allowed and the State appealed.

*325 Attorney General Hargrove, for tbe State.

Burton dk Burton and Busbee <& Busbee, for the prisoner.

Re ARSON, C. J.

On a trial for larceny, the jury, after deliberation for some eighteen hours, announces to the court that they cannot agree, whereupon his Honor, Judge "Watts, in the absence of the prisoner, who was confined in the jail of the county, but in the presence of his counsel, who neither assented to nor objected to his action, directed a juror to be withdrawn, and the jury was discharged. The prisoner’s counsel then moved for his discharge on the ground that he could not be again put on trial. This motion was overruled by Judge Watts. At the next term, the same motion on the same ground was made and was allowed by his Honor, Judge Mooee. So we have the conflicting rulings of two of the Judges of the Superior Courts in the very same case — in fact, one Judge reverses the decision of, the other Judge! How is this unseemly conflict of decision to be prevented ? It can only be done by enforcing the rule, res adjudieata.

Without entering into the question, was the decision of Judge Watts right or wrong, it is sufficient to say he had jurisdiction and decided the motion against the defendant. That, decision until reversed on appeal, or by writ of certiorari to this court, must stand as a thing settled.

It follows Judge Mooee erred in entertaining the motion. His ruling, by which the defendant was discharged, being a final detennination of the case, the Solicitor had a right to appeal.

This will be certified, to the end that the defendant may be again put on trial.

Pee Cueiam. Judgment accordingly.