69 Ind. 144 | Ind. | 1879
At the May term, 1879, of the coui’t below, the appellee, Jacob Overholser, was indicted for grand larceny. At the September term, 1879, he was tried by a jury and acquitted of the charge.
After the evidence was concluded, the prosecuting attorney insisted upon his right to argue both the law and facts of the cause before the jury, but the court refused to permit him to make any argument to the jury. The court thereupon, on its own motion, instructed the jury as follows:
“ Gentlemen of the jury : I feel that, owing to the state of the evidence in this case, a conviction would not be warranted by law. I therefore direct you to retire and return a verdict’of not guilty.”
The prosecuting attorney excepted to the decision of the court refusing to permit him to argue the ease before the jury, as well as to the giving of this instruction, and has appealed to this court, in the name of the State, upon the question thus reserved.
If, in this case, there was no evidence fairly tending to sustain the charge in the indictment, then we think the
Where this court can not render a decision upon a matter of law, reserved in a criminal cause, without first passing upon the facts of the case, no appeal can be taken by the State. The State v. Campbell, 67 Ind. 302.
The questions discussed by counsel are, therefore, not presented in such a way as to require us to make any decision upon them, and the appeal will have to be dismissed.
The appeal is dismissed accordingly.