Emerson v. StateEmerson v. State
- Reporters:
- Before:
- Cockkill
To a prosecution for a violation of the statute against selling liquor to а minor without the necessary consent, appellant interposed a plea of former conviction. He did not allege in it that the offence fоr which he was to be tried was the same as that for which he had been convicted. No objection was made to the plea, and by consent the issue undеr it was submitted to the jury with his plea of not guilty. To sustain the issue on the first plea, apрellant put in evidence the record of a former conviction, showing an indictment, the counterpart of the one under which the trial was progressing, еxcepting that it charged that the party therein accused made the prohibited sale in the month of September, 1883, whereas the second indictment charged that the appellant was “interested in” a sale made in Decеmber of the same year. It was shown by parol that the minor named in each indictment was the same person. Both sales were made within a year of the finding of the last indictment, the State proving the December sale as charged. Uрon this the appellant asked the court to instruct the jury that if they found that the minor named in each indictment was the same person, and that appellant had been convicted under the first, they should acquit him. This the court properly rеfused to do.
It was probably taken for granted on the trial that the appellant was the acсused in the first indictment, and his plea of former conviction may have been treated as good, but a presumption of the identity of the offences was nоt raised by the record of the former conviction. This has been held where the indictments were in point of fact alike. Commonwealth v. Sutherland. 109 Mass., 342.
The State v. Andrews, 27 Mo., 267, is a liquor cаse in point. The court there say: “To sustain the plea in this case it was incumbent on the defendant not only to produce the record of the former conviction, but to show by testimony that he had been previously tried for identically the same offence as the one for which he was then prosecuted; аnd it was not sufficient to show that the evidence offered on the last trial would hаve supported the first indictment, because it would have been supported by any act of selling within twelve months before the finding thereof.” See State v. Small, 31 Mo., 197.
It is sometimes said that the true test to ascertain whether a plea of autrefois convict be a good bar is whether the evidence necessary to sustain the second indictment would have been sufficient to procure a lеgal conviction on the first. Several of the text books have so stated it. An examination of the cases, however, upon which this rule is based, will show that the identity of the offence or of the main facts that constitute it is proved or аdmitted in perhaps every instance, and the second indictment having varied in some form of allegation from the first, the enquiry is have the indictments alleged the sаme offence, and the test is said to be the rule stated. This rule can have no proper application to a case in which no connection is shown between the offences charged in the two indictments.
The objeсtion made by the appellant to the indictment in this case were settled аgainst him in Waller v. State, 38 Ark., 656.
Affirmed.