| Ky. Ct. App. | Apr 17, 1923
Opinion op the Court by
Affirming.
The appellant, Calvin Middleton, was indicted February 4, 1922, by the grand jury of Harlan county for the offense of unlawfully selling intoxicating liquor in violation of chapter 81, section 1, Acts General Assembly 1920. On his trial, which occurred at the November term, 1922, of the Harlan circuit court, the jury returned a verdict finding the appellant guilty of the offense charged in the indictment and fixing his punishment at a fine of $200.00 and imprisonment of sixty days in jail. He was refused a new trial, and has appealed from the judgment of conviction.
The only ground relied on by the appellant for the reversal sought of the judgment is error alleged to have been commited by the trial court in refusing to sustain, or submit by proper instruction to the jury, his plea of former trial and acquittal interposed .on this trial as a bar to his prosecution for the offense charged in the indictment, in which plea it was alleged that he was tried and acquitted “on said charge” at a previous term of the Harlan circuit court on the testimony of the same witness who “testified as to the said facts as contained in this indictment.” It appears, however, from the bill of evidence contained in the record that the offense for which he was indicted and upon which he was, as alleged in the plea in bar, previously tried and acquitted, was that' of unlawfully transporting intoxicating liquor; whereas in the instant case, the offense charged in the indictment and of which the appellant was convicted, was, as stated in the beginning of the opinion, that of unlawfully selling intoxicating liquor, i. e., making a sale of such liquor for other than sacramental, medicinal, mechanical or scien
One who would claim immunity from prosecution from a criminal or penal offense under the laws of this state upon the ground of a former trial and his conviction or acquittal of such offense, must show his right to avail himself of the protection afforded by the provision of its Constitution contained in section 13, Bill of Rights, which declares: “No person shall, for the same offense, be twice put in jeopardy of his life or limb.” The constitutional guaranty thus conferred must be invoked by a written plea, supported by proof, showing that the second indictment is based upon the same criminal act which was the basis of the indictment upon which the defendant was previously convicted or acquitted. Criminal Code, sec
“A plea of former jeopardy to be sufficient must disclose not only that the evidence heard upon a former trial was substantially the same, but it must disclose that thé charge formerly tried was the same charge now being tried, or some degree of it, and that the same criminal act was involved upon each trial.” '
In Commonwealth v. Roby, 12 Pick 496, it is said:
“In considering the identity of the offense, it must appear by the plea that the offense charged in both cases was the same in law and in fact.”
In Miller v. State, 33 Ind. App. 509" court="Ind. Ct. App." date_filed="1904-06-10" href="https://app.midpage.ai/document/miller-v-state-7063782?utm_source=webapp" opinion_id="7063782">33 Ind. App. 509, the test with respect to such a plea is thus declared:
“When the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second. ’5
It is apparent from the facts disclosed by the record and the law as announced by the authorities, supra, that the plea of former acquittal interposed by the appellant in this case, was not a bar to his conviction of the offense charged therein. Hence, the judgment is affirmed.