US SUPREME COURT DECISIONS

Where, on an indictment for a capital offense, the supreme court of a state reverses a judgment of a court below under such circumstances as that the case must go back for trial on its merits, the judgment is not a "final judgment," and therefore is not capable of being brought here under the 25th section of the Judiciary Act.

An indictment had been found in one of the state courts of Tennessee at August Term, 1865, against a certain Rankin and ten other persons named in the indictment charging them with the murder of one Thornhill on the first of June preceding. The defendant, in August Term, 1866, pleaded that on the day mentioned in the indictment, he was in the military service of the United States, in the military district of East Tennessee, being first lieutenant of company B of the 9th Tennessee Cavalry, and bound to obey all lawful orders of his superiors, "then and there existing and being an insurrection and civil war in said military district," and that on the 5th day of October thereafter he was arraigned chanrobles.com-red

Page 78 U. S. 381

and put on trial at Chattanooga, before a general court-martial, for the same identical crime with which he was charged by the indictment, and was acquitted thereof; and he set forth the record and proceedings of the court-martial. To this plea the attorney general filed a replication, denying the existence of the record and the continuance of the war, and alleging fraud in the procurement of the trial by court-martial. The defendant demurred, and the court sustained the demurrer. The attorney general then filed a new replication, the case was tried, and the defendant was acquitted. Writ of error being brought, the supreme court of the state reversed the decree of acquittal on the ground that the defendant's plea was insufficient, and remanded the case to the circuit court for trial. The effect of this judgment was to overrule the defendant's plea and to require him to plead over to the indictment.

The case was now brought here by Rankin under the 25th section of the Judiciary Act, which gives a writ of error to this Court from the highest court of the state on "final judgments" in certain cases specified in the section.