On the 12th of August, 1875, the Solicitor ■of the Sixth Judicial District presented to this Court his petition duly sworn to, in which he set forth in brief as follows : That at October Term, 1874, an indictment for conspiracy and cheating by false pretences was found by the grand jury of Wake county against Littlefield and Swep-■son, on which writs of capias were issued up to April Term, 1875, none of which had been executed at the commencement of that term. The omission to execute these writs on Swepson was by direction of the Solicitor. Little-field could not be found. The State had retained counsel to aid the Solicitor in the prosecution. At some time during April aforesaid, in the absence of the counsel as retained, the counsel for Swepson moved that a verdict of not guilty should be entered for him, on the ground that as he alleged the action had been compromised. The defendant had been *638arrested on that day under an order made on that day by the Judge without the knowledge of the Solicitor, but was not present in Court, and was too sick to be able to be present. The motion was opposed by the Solicitor, but the Judge’ordered a jury to be impannelled and a verdict of not guilty to be entered, which was done. The [State was- not ready for trial and its materiál witnesses were not present, and no witnesses for the State were examined. An appeal was asked for on behalf of the State which was refused. The counsel for the State then prepared a statement of the facts above stated, and requested the Judge to have the same made a part of the record, which he also refused. The petitioner prayed that a mandamus issue to the Judge commanding him “ to cause the record to be amended so as to truly set forth the proceedings had upon said motion, and that the record when so amended be certified to this Court, to the end that said proceedings be reviewed and annulled, and the said indictment may be tried according to law, and for such other and further relief, &c.”
At January Term, 1876, upon the affidavit and motion aforesaid, this Court ordered a certiorari and mandamus to issue. Before any return was made to the mandamus the Judge before whom the case was tried and to whom it was directed, resigned and went out of office.
At January Term, 1877, a mandamus was ordered to be issued to the Judge of Wake Superior Court with a copy of the affidavit, requiring him to inquire into the truth of the facts alleged therein and to report to this Court. This he failed to do, and at the following term it was moved to direct the Judge who should hold the next term of Wake Superior Court to inquire into the truth of the alleged facts, and if he shall find them to be true substantially as they are alleged, that he cause'the defendant to be again arrested and put on his trial on the indictment.
If the facts alleged be true it can not be denied that the *639Judge before whom the alleged proceedings took place was ignorant or scandalously forgetful of his duties, and that one whom a grand jury had found fit to be tried for a serious offence -has escaped a fair trial by management and fraud.
At the last term.of this Court we deferred any action on the said motion then made, in the expectation that the Attorney General, or‘other learned counsel for the State, would find some precedent or authority to warrant us in granting his motion; but that has not been done, and our own researches have failed to find any, and we should not feel justified in longer delaying our judgment on the motion.
It must be clear that in a case such as is presented by the affidavit — which for the present purpose only, we are obliged to assume to be true — the State ought tó have some remedy. Guilt can not be allowed to protect itself by fraud and corruption, or else, the tribunals of justice become dens of thieves, and law as administered in them is a machine to punish the weak and screen the powerful. But the remedy is not to be had in this Court, and we do not know why the State has sought it here in a proceeding for which no precedent has been found. The jurisdiction of this Court with few exceptions is wholly appellate. It has no original jurisdiction to require a Superior Court to put an acquitted person again on trial, or to inquire whether or not the acquittal was procured by his fraud. The motion must be refused; but this refusal does not imply a failure of justice. There is a remedy not without precedent or authority for its use, plain, and not of infrequent use, laid down in the elementary works on criminal law, and supported by the adjudications of respectable Courts. This remedy is in the Court in which the trial was had, and is independent of any action of this Court. It is asserted in many text books and dicta of Judges and supported by some decisions, that a verdict of acquittal on an indictment for a misdemeanor pro*640cured by the trick or fraud of the defendant, is a nullity, and may be treated as such; and the person acquitted by such means may be tried again for the offence of which he was acquitted. 3 Greenl. Ev. § 38; 1 Whar. Cr. Law, § 546; 3 Ibid. §§ 3221, 3222; 1 Chitty Cr. Law, 657.
In State v. Tilghman, 11 Ire. 513, the defendant was convicted of murder and moved for a new trial, or for a venire de novo as on a mistrial, because of the improper conduct of the jury in having separated, and having conversed and corresponded by letters with other persons. The Judge below refused the motion and gave judgment against the defendant which was affirmed on appeal in this Court. Pear-SON, J. in delivering the opinion of the Court, says: That when it is made to appear on the record that there has not been a fair trial, the Court had a right to grant a venire de novo, whether the verdict was for or against the prisoner. Again he says: “ But if the fact be that undue influence was brought to bear on the jury, as if they were fed at the charge of the prosecutor, or of the prisoner, or if they be solicited and advised how their verdict should be, &c., in all such cases there has in contemplation of law been no trial, and this Court as a matter of law will direct a trial to be had, whether the former proceeding purports to have acquitted or convicted the prisoner.” It will be noted that so much of this opinion as relates to the action of the Court after an acquittal, was only a dictum of the Judge, not applicable to the case on trial. The principle that fraud will avoid a verdict in a criminal action was recognized by this Court in State v. Tisdale, 2 Dev. & Bat. 159, and in State v. Casey, Busb. 209, though it was not applied, as the Court did not consider the conduct of the defendants, fraudulent. Many cases are cited in the text books referred to, as sustaining the principle stated. Most of them are not accessible to - me. I cite, however, such as I have examined and which appear to be *641in point, 4 Mass. 477; 48 Mo. 70; Rex v. Bear, 2 Salk. 646; State v. Norvell, 2 Yerger (Tenn.) 24.
Cases of acquittal procured by fraud of the defendant form an exception to the general rule, that no one shall be twice put in jeopardy for the same' offence. This exception, it will be seen, does not apply tó capital cases, and perhaps •not to felonies in general (unless we accept, the dictum of Pearson, J. above quoted, as law). The eases which I have •seen are mostly of proceedings before inferior jurisdictions, -such as magistrates, &c., though there is no reason why it ¡should be confined to them. The language of the text books •extends to all misdemeanors in whatever Courts they may he tried.
From these authorities it seems that the Solicitor may with, and perhaps without, the consent of the Judge cause f he defendant to be again arrested and put on trial on the old bill; (see State v. Thornton, 13 Ire. 256; State v. Tilletson, 7 Jones 114; State v. Woody, 2 Jones 276; State v. Tilghman, 11 Ire. 513,) or if no statute of limitation bars, he may send a new bill to the grand jury, and on its being found, proceed to trial of the defendant as usual, disregarding the •former verdict and judgpaent as nullities on account of the fraud in procuring them. In either case the defendant may plead his former acquittal to which the Solicitor may reply that it was procured by the fraud of the defendant. Thus an issue of fact is raised to be tried by a jury under the instructions of the Judge as other issues are, and any question -of law involved may ultimately come regularly before this •Court for adjudication. The motion is refused. The indictment can scarcely be considered as having been brought into this Court, but if it is here, it is remanded.
PER Curiam. Motion refused.