This was a case reserved under § 119, 2 R. S. p. 377, by the prosecuting attorney.

The appeal will have to be dismissed.

The statute referred to, authorized a reserved case to be appealed to this Court within a year after the defendant is acquitted.

The record before us shows that the points reserved arose upon the ruling of the Court in granting the said Ely a new trial, he having been tried at the April term, 1858, and a verdict of guilty, &c., having been returned.

So far as the record shows, there has been no final trial; the cause was continued upon granting the new trial.

Per Curiam. — The appeal is dismissed.