¶1The opiniou of the Court was delivered by
¶2Defendant was tried under an indictment charging that he did “wilfully, feloniously and of malice aforethought shoot Frank .Key, with intent him, then and there to kill and murder,” etc.
¶3The indictment is, in every respect, properly framed, as a charge of the offense denounced by Sec. 791 of the Revised Statutes.
¶4After due trial, the jury rendered the following verdict: “We the jury find the prisoner guilty of shooting with attempt to kill and ask for him the mercy of the court.”
¶5Defendant moved for a new trial on several grounds, and also filed a motion in arrest of judgment on the ground that “the verdict is not responsive to the indictment, and the variance between the two is fatal and the accused should be finally discharged as in effect acquitted.”
¶6The two motions were tried together, and judgment was rendered as follows: “By reason of the law and the failure of the jury to find a legal verdict, it is ordered, adjudged and decreed that judgment be ■arrested, the verdict of the jury set aside, and the defendant remanded to the custody of the sheriff for a new trial.”
¶7From this judgment the defendant appeals, claiming that the effect •of the judgment sustaining the motion in arrest of judgment was to terminate the prosecution and to require the discharge of the accused! •and the qualification thereof remanding him to custody for a new trial ■was erroneous and illegal.
¶8The attorney for the State moves to dismiss the appeal on the ground that, in criminal cases, appeals only lie from final judgments, and that this is not such a judgment. He cites Rev. Stat. sec. 1001; 37 Ann. 62; 33 Ann. 1228; 15 Ann. 347; 12 Ann. 390; 9 Ann. 69, 157; 8 Rob. 583.
¶9Undoubtedly it is true that criminal appeals only lie from final judgments; but the contention of defendant is that this judgment is, in its nature and legal effect, final; and that the judge has committed error in qualifying it and thereby denying its effect as a final judgment.
¶10Under the peculiar circumstances we think the appeal should be maintained and the question passed upon; siuce, if the nature of the judgment rendered be such as to terminate the prosecution and require the discharge of the prisoner, it is intolerable that he should be held in custody and subjected to a new trial and judgment therein, before ■such an error could be corrected.
¶11On the merits, however, we think the judge did not err in his ruling.
¶12*634The defect of the verdict is that it finds the prisoner guilty of no crime denounced by law. It falls directly under the authority of State vs Foster, 36 Ann. 857, and State vs. Burdon, 38 Ann.—not yet reported — in both of which cases, after setting' aside the verdict, we remanded them for new trial.
¶13This course is in strict accord with the authorities. Thus Mr. Bishop-says: “ There ought never to be a defective verdict. It tlie jury bring, in a defective verdict, it is in the power equally of the piisoner and of the prosecuting attorney to have it set right; and suppose the prisoner chooses not to interfere, and suffers a defective verdict to bo entered, as his interest would always prompt him to do, in preference to a verdict of guilty in due form, he, by thus failing to interpose, waives his. objection to being put a second time in jeopardy for the same offense. In all such cases, therefore, the verdict is simply set aside as a nullity,, and a new trial is ordered.” 1 Bishop Cr. Proc. § 1016, and numerous cases there cited.
¶14The cases of Day, 37 Ann. 785, Murdock, 35 Ann. 729, and Pratt, 10 Ann. 191, were of a different character. In those cases the verdicts were not defective in form or substance. They were sufficient verdicts for crimes denounced by law; and were only set aside because not warranted by tbe indictments. The defendants could not have objected, to the recordation of such verdicts and the implied waiver of second jeopardy did not arise. Their only recourse was by motion in arrest after verdict.
¶15We tliiuk tbe judge a quo acted in full accordance with law.
¶16Judgment affirmed.