delivered the opinion of the court.
Appellant was tried for and convicted of the rare crime of selling intoxicating liquors. A plea of autrefois acquit — former jeopardy^was interposed by defendant. We think it unnecessary to comment upon the numerous assignments of error, as none of them, save one, are of any interest to anyone except appellant, and are devoid of merit.
Upon the trial of the plea of former jeopardy, the court instructed the jury that the burden of proof was upon the defendant to establish his plea. It is insisted that this was manifestly wrong. When the guilt of the defendant is in question, he is protected by the presumption of innocence ; but when a former acquittal is in question, the defendant has no such presumption to aid him. The plea of former acquittal is not a plea upon the merits; it is not an inquiry as to what the defendant has, or has not, done, and is, therefore, not of a criminal nature. It is a collateral inquiry as to what action the court has taken on a former occasion. The defendant must prove that he has been acquitted upon the merits of the identical offense he was called upon to answer. Rocco v. State 37 Miss. 357; Brown v. State 72 Miss. 95, 16 South. 202; State v. Ellsworth, 131, N. C. 773, 42 S. E. 699, 92 Am. St. Rep. 790; State v. Scott, 1 Kan. App. 748, 42 Pac. 264. In some jurisdictions a prima fade presumption of former jeopardy arises from the identity of the indictments in material as
It was competent for the state to show that the former acquittal was obtained by collusion, and we think the evidence warranted the submission of this issue to the jury.
Affirmed.