¶1It is enacted by the 11th section of the 8th chapter of the Penal Code, that “ whenever, in the progress of a criminal trial, it shall be found, that there is such a material variance between the allegations of the indictment, and the proof adduced, as will for that cause authorize the acquittal of the accused, and he shall not assent to the amendment of the indictment, so as to correspond with the proof, it shall be lawful for the solicitor, with the leave of the Court to enter a nolle prosequi at any time before the jury shall retire, and prefer another indictment at the same or any subsequent term'of the Court,” &c. [Clay’s Dig. 439.J Of the constitutionality of this enactment, we think there can be no well grounded doubt. If the discrepancy “between the allegations of the indictment and the proof adduced,” be such as will authorize the acquittal of the accused, a verdict of not guilty cannot be pleaded in bar of another indictment adapted to the admission of the evidence. What objection then can there be to the defendant in such case waiving a verdict in his favor, and consenting to an amendment of the indictment ? By this course of procedure, the administration of justice may be expedited; for if the defendant is acquitted in consequence of the inappropriateness of the indictment, when the proof shows his more than probable guilt of an offence against the criminal law, the Court should certainly commit, or recognize him to answer to another indictment. It is frequently a matter of consequence, not only to the innocent, but to the guilty, that they should have a speedy trial — to the former that they may be acquitted — to the latter that the dreaded punishment be not long suspended; the more especially where the accused is compelled to submit to imprisonment, either before or after conviction.
¶2If the defendant in the case at bar had been indicted merely for the larceny of the fifty dollar bank note, there could have been no objection to allowing the amendment. But the indictment embraces not only the bank note, it charges also the stealing of *956one gold and ten silver watches. Now in respect to the latter, it is not pretended that there was any variance in the proof, whatever opinion may have been entertained as to its sufficiency; and a nolle prosequi could not be entered, consistently with the rights of the accused in all criminal prosecutions.
¶3When an indictment for a felony has been submitted to a jury upon the plea of not guilty, it is not allowable for the Court to permit a nolle prosequi to be entered, (without the consent of the accused,) that he may be again indicted for the same offence. It is the office of his triors to make «true deliverance” between the State and himself, and it is beyond the competency of the judge to arrest the due course of law by withdrawing the cause from the jury. This principle has been recognized for a period of time “beyond which the memory of man runneth not to the contrary.” Its antiquity and-stability make it a fundamental doctrine in criminal jurisprudence. See The State v. Williams, 3 Stew. Rep. 476 to 479, and cases there cited; Ned v. The State, 7 Porter’s Rep. 187.
¶4The amendment, it must be observed, was not willingly assented to by tho defendant, but his consent was given to prevent the withdrawal of the issue from the jury, and his trial upon a second indictment. It is sufficiently apparent from what has been said, that the Court had not tho power in respect to the watches, to compel the defendant to elect between such alternatives; and the bank bill being embraced in the same indictment as one of the objects of the larceny, the case does not come within the provision of the Penal Code which has been cited. We express no opinion upon the sufficiency of the evidence to convict .for stealing the watches, without the amendment of the indictment; nor will we undertake to determine to what extent amendments are allowable under that enactment.
¶5This view is decisive of the case, and we will not consider the questions raised as to tho sufficiency of the indictment. The judgment of the Circuit Court is reversed, and the cause remanded, that it may be proceeded in according to law. [See The State v. Williams, supra; Ned v. The State, supra; The State v. Hughes, 2 Ala. Rep. 102.] And tho prisoner will remain in custody until he be legally discharged.