¶1The only assignment of error which is necessary to be considered and decided in this case, is the complaint of the plaintiff in error that the court erred in allowing the accusation to be amended so as to charge the offence as having been committed in the county of Fulton, this having been omitted in the original accusation, and it appearing that the accused had been put upon his trial, a jury selected, all the testimony submitted, and argument of counsel to some extent heard, when this amendment was allowed and the case proceeded without any proof being offered other than that which had already been submitted to the court. -
¶2The offence in this ease was created by the act of 1871 (acts 1871-2, p. 71), and the acts amendatory thereof. Code, §§4600-4601(a); Acts 1887, p. 37. The accusation takes the place of an indictment. We know of no practice or decision' of any court of this State allowing proceedings of this sort to be amended under the circumstances of this case. The constitution -provides that a person accused of crime shall be tried In the county where the crime was committed-This court has held from the first that it is necessary for the State to prove that the crime wa's committed in the county where the trial was had, and upon failure to do this new trials have been awarded. If it is necessary to provethe county in which the crime was committed, and that it was in the same county in which the trial is proceeding, it would seem to be essential that the iudictment or accusation which charges the crime upon the defendant should also allege that the crime was committed in the county in which such indictment or accusation is proceeding. Without it the indictment or accusation is demurrable, and in this case the motion in arrest of judgment was good. No person can be put *499on trial for an offence which is not prescribed by the legislature.
¶3Our statute of amendments does not apply to accusations. The solicitor of the city court, before trial of a criminal ease and before the selection of a jury, can at any time amend the accusation as he may deem proper, but it is too late to amend after the'party has been put upon his trial, as was done in this case.
¶4So we think the court below erred in allowing the amendment to the accusation in this case, and the judgment is Reversed.