10 Mich. 164 | Mich. | 1862
The question of a former acquittal as a bar to a new indictment must always depend upon the substantial identity of the offenses charged, and on the validity in law of the first indictment. In the present case, it was admitted that the offense charged in the former indictment was the same now alleged. The former trial also appears of record to have been upon the indictment as produced and proved in the Court below. The evidence allowed to invalidate it did not go to show a subsequent alteration, but to prove an amendment made by the Prosecuting Attorney previous to the trial, without authority.
That a defendant could object to allowing such an amendment to stand is very clear. But the effect of such an objection would necessarily be, if allowed, to leave the
The only question, therefore, which could properly arise, was whether the indictment, as it reads, was sufficient in law to base a good conviction upon. If so, an acquittal under it would be conclusive. It was the duty of the Court to charge the jury upon its sufficiency, as that is a mere question of law. A question of fact could not arise upon any such previous alteration as was set up by the 'prosecution, because, for the reasons alluded to, it was immaterial, and no evidence should have been permitted on the subject.
New trial directed.