197 Ky. 496 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Appellant was convicted in the Pulaski circuit court of the offense of selling intoxicating liquor, and was fined $200.00 and given a jail sentence of thirty days.' He has appealed from the judgment on the sole ground that the lower court erred in refusing to sustain his plea of former .-conviction.
A.plea of former conviction, under our practice,, is considered as controverted by denial and by any matter of avoidance that may be shown in the evidence. Section 179 Criminal Code; Commonwealth v. Rose, 107 Ky. 566. And section 270 of the Criminal Code provides that the granting of a new trial places the parties in the same position as if no trial had been had. Fain v. Commonwealth, 109 Ky. 545; Hoskins v. Commonwealth, 152 Ky. 805. It has been held that the pendency of two indictments for the same offense, coupled with the trial of one of them, does not put the defendant in jeopardy twice for the same offense, and that he cannot plead the pendency of one of the indictments in bar of a trial on the other. Madisonville R. R. Co. v. Commonwealth, 140 Ky. 255; Hobbs v. Commonwealth, 156 Ky. 847. It has also been held that former conviction is an affirmative plea, the onus of which is on the accused. Vowells v. Commonwealth, 83 Ky. 193. Considering appellant’s plea and taking cognizance of Newton v. Commonwealth, supra, we have a situation in which it appears that defendant’s position in the former case is the same “as if
The judgment is affirmed.