The opinion of the court was delivered by
Thе appellant, Wesley Jenkins, was tried and convicted at the June Term, 1883, of the Court of Sessions for Anderson county, of burning an untenanted house. To the indictment, he plead autrefois acquit, which being оverruled, upon trial he was convicted and sentenced,
The appeal raises the single question whether his plea of autrefois acquit should have been sustained. To undеrstand this question, the facts must be stated. It appears that the appellant was indicted and tried at the February Term, 1883, of the court for Anderson, for arson, the indictment charging him with having burned a house within two hundred yards and appurtenant to the dwelling-house of one Jesse J. Dobbins, &o. Upon this trial, it being evident that the house burned was not appurtenant to a dwelling-house, under instructions from the court, the jury returned a verdict of not guilty.
At the next term of the court, to wit, in June, 1883, he was again indicted, this time under the act for “Burning an untenanted house.” After the jury had been impaneled, but before any testimony was adduced, the solicitor discovered that the accused was charged with having committed the offense on December 19th, 1883, (a future time,) instead of December 19th, 1882, (the real time,) whereupon he moved to quash the indictment, which was ordеred against the objection of appellant’s counsel, who claimed that his client was entitled to a verdict. The indictment, however, was quashed, and, the grand jury not having been disсharged, a new indictment charging the proper time, and that the property belonged to J. Jesse Dobbins instead of Jesse J., as in the first, was found, upon which the accused was tried, and, as above stated, convicted and sentenced.
The question is, Was the offense сharged in this last indictment the same as in either of the other two? If so, the appeal shоuld prevail, as there can be no doubt that in such case he could successfully invokе for his protection the principle that no person shall for the same offensе be twice put in jeopardy, or, as is said in the constitution, section 18, article I.: “No person after having been once acquitted by a jury shall again for the same offense bе put in jeopardy of his life and liberty.” The question is a mixed one of law and fact. . The facts, however, are not disputed, and, therefore, the question of law is alone to be сonsidered. Were the offenses the same? There is no doubt, but that the same occurrence gave rise to all three indictménts,
Let us subject the question tо another test. Could the accused have been convicted at the first trial and under thе first indictment of the offense charged in either of the other two? When, put upon trial for arson, could he have been convicted of burning an untenanted house? Certainly not, as arson does not necessarily embrace the other offense. 'Nor, inasmuch as the indiсtment for arson did not contain a charge of facts constituting the other offense, сould testimony have been introduced as to the other, as it is a rule of law, that the testimony must correspond with the allegations, a rule applicable to both civil and criminаl cases, and especially so to criminal. If then the accused could not, under аny circumstances, have been convicted of the present offense in the formеr trial, how then can it be said that upon the present trial he has been put in jeopardy twice for the same offense, or, in the language of the constitution, “ That after having been once acquitted by the verdict of a jury of an offense, he has again been put in jeopardy of his life or liberty for the same ” ? The same may be said as to the two last indiсtments — the accused could not have been convicted under either of the offеnses charged in the other. The following authorities are referred to to sustain this conclusion: 1 Arch. Or. Pl. 348-351; 9 Past 441; State v. Taylor, 2 Bailey 49; State v. Glasgow, Dudley 40; State v. Pisher, 1 Rich. 219.
It is the judgment of this court that the judgment of the • Circuit Court be affirmed.