Defendant was convicted of the embezzlement of a mule, and was sentenced to five years at hard labor, and he appeals. He is not represented by counsel in this court.

He pleaded autrefois acquit; he having been prosecuted before, and acquitted, on an indictment for mule stealing based on the same transaction.

The plea should have been sustained. It is precisely the case provided for by sections 1055 and 1056, Rev. St., where it is said that a conviction for embezzlement may be had on an indictment for larceny, and vice versa, and that if, on the trial for any crime, it appears that the facts given in evidence amount in law to some other offense, the defendant shall not be prosecuted for such other offense on the same facts, unless the judge upon such trial shall discharge the jury from giving a verdict.

Judgment set aside, and defendant ordered discharged.