delivered tbe opinion of tbe court.

Thompson was convicted of unlawful retailing. Tbe court sustained bis motion for'a new trial, vacated tbe judgment, and .continued tbe cause. Thereupon tbe district' attorney prayed an appeal, assigning errors as follows: That tbe court erred in granting a new trial; in sustaining tbe objections to tbe argument of tbe district attorney, it being averred tbat tbe argument was not an improper or unlawful one; and tbat no objection was made or exception taken at tbe time tbe comment complained of was uttered. We cannot consider tbe alleged errors of law presented by tbis record, for tbe reason tbat tbe state of case made is not sucb a one as empowers tbe state to prosecute an appeal. Code 1892, § 39, provides tbat tbe state *202may prosecute appeals from the judgments of circuit courts in criminal causes in three instances only: First, where a motion to quash or a demurrer to an indictment or affidavit charging crime is sustained; second, from a judgment actually acquitting a defendant, where a question of law has been decided adversely te the state; third, from a ruling adverse to the state' in every case in which a defendant is convicted and prosecutes an appeal. All questions of law presented on such appeals' must be decided by this court. The instant case falls within none of the classes in which appeals by the state properly lie. The case is still undetermined, the prosecution still pending, and no motion to quash or demurrer to the indictment was sustained or presented. We need not consider errors of law committed during the progress of the trial, if any such there were, because they may not occur on the subsequent trial which must be had on the indictment.

The appeal was granted under a manifest misconception of the law, and is dismissed.