STONE, J.
The defendants were found guilty on the first count in the indictment, without any mention in the verdict of the second count. This is equivalent to a verdict of not guilty on the second count, and the prisoner can not again be indicted or tried on that count. — Murray & Bell v. The State, 48 Ala. 675.
Seven persons, including the two appellants, were charged in one indictment with the crime, of arson. The indictment *32contained two counts, each charging the setting fire to, or burning the jail of Wilcox county. In the first count it was charged that persons occupied or lodged in said jail at night. This is arson in the first degree. — Code of 1876, § 4346. The second count describes the jail as a building erected for public use. This is arson in the second degree. — Code of 1876, § 4347. There is a wide difference in the measure of' punishment attached to the two degrees. The indictment was found and filed in court at the fall term, 1875. At the same term, three of the defendants, not including the appellants in this case, were tried and convicted. The minute-entry states that the defendants, William Simpson, Monday Knox, H. C. Stephens, alias Calvin Stephens, and Robert Green came into open court, in their own proper persons and by counsel, “and the State with leave of the court entered a nolle prosequi as to the first count of the indictment, and thereupon the defendants, William Simpson, H. C. Stephens, alias Calvin Stephens, and Robert Green, each pleaded guilty as charged in the second count of the indictment,” &c. Sentence was then pronounced on them. The defendants in the present case, Lewis Walker and Cato Sellers, were put op trial at the spring term, 1878, on the plea of not guilty. The verdict of the jury was, “we, the jury, find the defendants, Cato Sellers and Lewis Walker, guilty as charged in the first count of the indictment.” It was then moved in arrest of judgment tthat the said first count of the indictment having been nol. prosed, there remained in the indictment only the second count; and the verdict of the jury being an acquittal of the charge contained in the second count, the prisoners wei’e entitled to their discharge. The court overruled the motion, and sentenced the prisoners each to confinement in the penitentiary for ten years.
The entry of a nolle prosequi — -(unwillingness to further' prosecute) — in a criminal cause, before the defendant is put in jeopardy by the empanneling and swearing the jury for his trial, is of frequent occurrence. The effect is, not to absolve the prisoner from liability for further prosecution for the same offense. Its only effect is, to put an end to the then prosecution, before the prisoner had been jeoparded thereunder. — See State v. Kreps, 8 Ala. 951; State v. Blackwell, 9 Ala. 79; Barnett v. The State, 54 Ala. 579; 1 Bish. Cr. Law, (6th ed.) §§ 1014, 1015, et seq. This, however, is not the-question presented by this record.
We think when the State entered a nolle prosequi of the *33first count in the indictment, the effect was to destroy entirely that count, and to leave the indictment as containing only one, the second count. It stood then as if the grand jury had never preferred the first count. To hold otherwise, would be to enter on complications and embarrassments, upon which, in the absence of precedent, or some more substantial argument than we have yet perceived, we fear to enter. IVe think this question entirely unlike that which was considered in Aaron’s case, 39 Ala. 75. The result is that the defendants were put to trial solely on the second count; and as we have shown above, the jury acquitted them of that charge. The verdict furnishes no warrant whatever for the judgment which the court pronounced, and the same must be reversed. But, inasmuch as the defendants have not' been put in legal jeopardy on the charge contained in the first count, they may be again indicted for that offense.
Reversed and remanded, but the prisoners will remain in custody until discharged by due course of law.