¶1(dissenting).
¶2I will dispense with the usual formality, though sincere, of apologizing for writing a dissenting opinion in this case; and in writing same, will confine it to the issue of former jeopardy which is the only issue, as I view the record, necessary to be decided.
¶3By reference to the report of the opinions in State v. Steadman, 214 S. C. 1, 51 S. E. (2d) 91, and the record herein, it will be seen that the appellant was tried for the first time at the January (1948) term of the Court of General Sessions for Richland County on an indictment containing two counts bottomed on Sections 1112 and 1113 of the Code, which sections are set out in full in the main opinion in that case (and in the majority opinion on this appeal), and therefore need not again be set forth.
¶4*609Prior to pleading to the indictment, the appellant, through counsel, moved to quash it on the ground that it contained two separate and distinct statutory crimes; and failing in this motion, it was further moved that the State be required to elect upon which count (section of the Code) it would proceed.
¶5The trial Judge refused both motions and the appellant was put upon trial on both counts. At the conclusion of the testimony in behalf of the State, the appellant unsuccessfully moved for a direction of verdict of not guilty generally, and again after all testimony was in, the appellant unsuccessfully moved for a direction of verdict of not guilty on the first count of the indictment, under Section 1112 of the Code. The jury found a verdict of “Guilty” on the first count. No mention was made in the verdict of the jury as to the second count in the indictment. Indeed, the trial Judge charged the jury: “I say, it is within your province to return a verdict of ‘Guilty on first count,’ and that will mean, in view of the way I am submitting the matter to you — that will mean not guilty on the second count, or at least you won’t be concerned with it. At any rate, first, ‘Guilty on the first count,’ or, second, ‘Guilty on the second count,’ or, third, ‘Not Guilty.’ Now, does everybody understand that? I think I made it clear. In other words, I might submit the matter to you in a different form, but under the view I take of it, I am just going to submit it to you that way. In other words, it is within your province, depending upon how you view the testimony, and depending upon what weight you attach to it, to return one of three verdicts, either ‘Guilty on the first count,’ or, ‘Guilty on the second count,’ or, ‘Not Guilty,’ which would mean not guilty on either of the counts contained in the indictment.”
¶6The jury found a verdict of guilty on the first count, and from such judgment the appeal came to this Court. In the opinion of this Court it was stated: “The exceptions to which we direct our attention, and the only ones necessary for the *610Court to consider in this appeal, raise the issue if there was sufficient proof of the corpus delicti to allow the Judge to submit the case to the jury under Section 1112 of the Code. Stated in another way, did the trial Judge err when he refused to grant the appellant’s motion for a direction of verdict of not guilty as to the first count in the indictment?”
¶7After a discussion of the applicable law, this Court stated that there was a total failure on the part of the State to produce testimony of very necessary elements to sustain a conviction of the appellant under Section 1112 of the Code (the first count in the indictment), and directly and definitely held “that the trial Judge erred in refusing the appellant’s motion for a direction of verdict of not guilty under the first count; and that the case should have been submitted to the jury on only the second count.”
¶8It will therefore be seen that the appellant was not granted a new trial, and under the exceptions considered, did not seek a new trial, but, as aforesaid, successfully sought to have this Court declare that the trial Judge committed error in refusing to grant her motion for a direction of verdict of not guilty on the first count contained in the indictment — the one on which she was convicted and sentenced. No issue was then before this Court as to the second count in the indictment. The remanding of this case for a new trial on count two of the indictment by a majority of the Court was purely gratuitous, without such issue being before the Court in any form, and without opportunity being given the appellant to be heard thereabout.
¶9Now, for the first time, does the issue of the appellant’s pleas of autrefois acquit and “former jeopardy” on the second trial, when she was tried, convicted and sentenced solely on the second count, come before this Court.
¶10Notwithstanding the charge of the presiding Judge, let it be conceded, without so deciding, that the plea of autrefois acquit, under the facts of this case, is not available to the appellant; yet this does not take from her the plea of “former *611jeopardy.” There can be no question that she wes put upon trial on both counts in the indictment in her first trial, and a mistrial on this count was not ordered by the trial Judge for cause. The appellant was placed upon trial upon a valid indictment, before a Court of competent jurisdiction, after being arraigned, after pleading not guilty thereto, and when a competent jury had been sworn; and she could not be deprived of the plea of former jeopardy by reason of the charge to the jury by the trial Judge upon that trial.
¶11The leading case in this State dealing with the pleas of autrefois acquit and “former jeopardy,” is State v. Bilton, 156 S. C. 324, 153 S. E. 269, 272, authored by Mr. Justice Blease (afterward Chief Justice), and concurred in by all members of the Court as then constituted. It is therein stated:
“At the outset, let it be noted that there is quite a distinction between autrefois acquit and ‘former jeopardy.’ Autre-fois acquit is a plea made by a defendant that he has been formerly tried and acquitted of the same offense. 6 C. J. 870.
“ ‘According to the decisions of this state, and the weight of authority elsewhere, it may be stated, as a general rule, that one is in jeopardy when a legal jury is sworn and impaneled to try him upon a valid indictment, in a competent Court.’ State v. Rountree, 127 S. C. 261, 121 S. E. 205; State v. Stephenson, 54 S. C. 234, 237, 32 S. E. 305, 307.
“ ‘A defendant in a criminal prosecution is in legal jeopardy when he has been placed upon trial under the following conditions : (1) Upon a valid indictment or information; (2) before a court of competent jurisdiction; (3) after he has been arraigned; (4) after he has pleaded to the indictment or information; and (5) when a competent jury have been impaneled and sworn.’ 16 C. J. 237.
“To sustain the plea of autrefois acquit, a defendant must establish all the essential elements of legal jeopardy, and, in addition thereto, he is required to show that a verdict of *612acquittal was rendered. The effect of the sustaining by the court of a plea of former jeopardy is equivalent in one great respect to the effect of upholding a plea of autrefois acquit since the result is to prevent the defendant’s trial again for the offense. The main difference in the result of the sustaining of the pleas is this: In that of autrefois acquit, the court declares that the innocence of the defendant of the crime charged has been legally established theretofore; while, as to former jeopardy, without a holding as to his innocence, it is declared that the state cannot try him again for the alleged crime.”
¶12It is unnecessary to consume time and energy in pointing-out wherein the Billon case is absolutely controlling of the issue here. Such will be obvious from a reading of that case.
¶13It is my opinion that the appellant is being denied the right guaranteed, not only to her, but to all other citizens of the State, by that portion of Section 17 of Article 1 of the Constitution of 1895 reading: “Nor shall any person be subject for the same offense to 'be twice put in jeopardy of life or liberty.”
¶14Of the lesser of two evils, I would say that to allow one guilty of crime to escape punishment is preferable to the deprivation of such one’s guaranteed constitutional right by a mandate of the Court.
¶15For the foregoing reasons, it is my opinion that the judgment should be reversed, and the appellant allowed to go hence without delay.
¶16Tayeor, J., concurs.