delivered tbe opinion of tbe court.
We only deem it necessary to notice one question involved in tbis case, and tbat is tbe action of tbe court in overruling the demurrer of tire state to defendant’s plea of former jeopardy. Tbe court below should not bave overruled tbe demurrer of tbe state, since tbe plea itself shows tbat there bad been no actual acquittal or conviction on tbe merits, and tbis being tbe case tbe state was not barred from further prosecution. Stection 22, of tbe constitution of 1890, expressly provides tbat before a person shall be considered to bave been once in jeopardy, so as to bar another prosecution, there must be “an actual acquittal or conviction on tbe merits,” and there bad been no such acquittal or conviction. In tbe case of Roberts v. State, 72 Miss. 728, 18 South. 481, in speaking of tbis section tbe court said: “It was put into tbe constitution in tbe interest of due and proper administration of tbe criminal law, is too plain for construction, and means exactly what it says.”
Tbe action of tbe court below in overruling tbe demurrer was error. So ordered.