Defendant was convicted and fined in the sum of three hundred dollars in the Circuit Court of Dunklin County, upon an amended information which charged him with a violation of the Local Option Law, in that he unlawfully sold one rtint of whiskey in Dunklin County, in whiсh the Local Option Law was in full force and effect. The defendant- was charged and arrested under the name of William Linton.
Upon the trial defendant filed a plea of autrefois acavit. alleging in substance that he had before been placed in jeopardy fоr the identical crime.'
*5 The facts upon which the former jeopardy arises are admitted and may be briefly summarized as follows:
. On December 14 1918, the Prosecuting Attorney of Dunklin County filed an information in the circuit cоurt of that county against William Linton. The information was in two counts, but by some mishap, the reason for which does not appear in this record, the first count charged one "William Sharp with the unlawful sale of one pint of whiskey on December 13, 1918, in Dunklin County, in violation of the Local Option Law. The second count charged William Linton with having violated said Local Option Law on December 13,1918, by unlawfully keeping, storing for and delivering to аnother person, one pint of whiskey. It is admitted that defendant A. E. Linton was arrested under this first information and gave bond thereunder and when the case was called for trial under the first information on January 14, 1919, defendant A. E. Linton, appeared .and answered ready for trial. Thereupon a jury was selected and sworn to try the cause. Shortly thereafter the prosecuting attorney discovered the mistake in the first count of the information and entered a nolle prosequi in said cause and the jury was discharged over the protest, objection and exception of the defendant. Thereafter- and on the same day the said prosecuting attorney filed the amended information upon which the present trial was had.
It stands conceded by this record that both of these informations undertook to charge a crime based upon the identical trаnsaction. In other words there is evidence tending to show that defendant did violate the Local Option Law by selling said pint of whiskey in said county and in so doing and as part of the transaction he delivered said pint of whiskey, alsо in violation of said Local Option Law.
The defendant was granted an appeal to the Springfield "Court of Appeals, but that court, in an opinion rendered, transferred the case here on the theory that a constitutional question was involved, in that the cause involved the construction of Article 2, Section 23, of our Con *6 stitution which, deals with the subject of former jeopardy.
I. The fact that defendant A. E. Linton was named as William Linton in the respective informations does not'in any manner affect the question оf former jeopardy.
ifctmef
It is admitted that defendant A. E. Linton was the Person intended in both informations and that he was the person who in fact was arrested and entered his plea in both instances. Whenever a defendаnt is indicted by his wrong name and does not call the trial court’s attention tó his correct name before pleading he is to be proceeded against by the name in the indictment. [Section 5113, R.S. 1909.]
Jeopardy.
II. It stands conceded that the second count of the original information and the amended information each charge a crime growing out of one and the same criminal transaction. In other words, the unlawful delivery charged in the second count of .the original information is but a part of the transaction going to make up the unlawful sale charged in the amended information.
We have no hesitancy in saying that the first count of the оriginal information cannot be used as the basis of a plea of former jeopardy because upon its face it charges no crime against the defendant.
But under the second count of the original information, defendant is charged with an unlawful delivery of this one pint of whiskey. The case was called, the parties announced ready for trial, and a jury was selected and sworn to try the cause and thereafter, over the objection and exception of defendant, the prosecutor entered a nolle prosequi and the jury was discharged.
Under a recent ruling of the Springfield Court of Appeals had the trial proceeded to an аcquittal or conviction upon the second count of the original information, it would have been a complete bar to another prosecution for the unlawful sale based upon the same transaction, which forms the basis of the charge in the amended information. [State v. Needham,
*7 We think the above ruling of the Court of Appeals is sound and is in harmony with the greater weight of authority. [Kelley’s Criminal Law and Practice (3 Ed.), par. 237, p. 194; 8 R. C. L. 143; 16 C. J. 279.]
If it be true, as above stated, that a conviction or acquittal under the second count of the original information would be a complete bar to a prosecution under the amended information then there is no escape from the conclusion that defendant was placed in jeopardy under the second count of the original information when the jury was sworn. This is the well.establishеd rule at common law. [State v. Webster,
_ isc aige.
III. Although it be conceded that the defendant has been once before in jeopardy for the same offense, is he entitled to be discharged by reason thereof an(j gQ ky -flrkaj- authority of law? Section 23 of Article 2 of the Missouri Constitution is as follows:
“That no person shall be compelled to testify against himself in a criminal cause, nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty, but if the jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law.” (Italics ours).
We are of the opinion that the above constitutional provision has no real application to the situation now held in judgmént. The Constitution says, “nor shall *8 any person, after being once acquitted by a jury, be again, for tbe same offense, put in jeopardy of life and liberty,” etc. The defendant in tbe instant case was not acquitted by a jury and hence we are unable to see in what manner tbе constitutional provision can be held to apply. Tbe language of tbe Constitution is clear and unequivocal and we know of no reason why it should not be construed as it reads.
There seems to have arisen some confusion'on tbe question of former jeopardy and our own reports are not entirely free from criticism along this line. After carefully reviewing many of tbe cases upon tbe subject we are led to tbe belief that this confusion arises by reason of failing to call to mind that tbe law of former jeopardy first arose under tbe common law. (8 R. C. L. 134-135 )\ and that in some state constitutions and in tbe Federal Constitution tbe old common law rule that no person shall for the same offense be twice put in jeopardy of life or limb, was incorporated in its entirety, while in other state constitutions, notably that of Missouri, apparently only a portion of tbe сommon law on tbe subject was incorporated (and thereby removed from legislative interference),
But it goes without saying that tbe common law as to former jeopardy is in effect in this State, unless tbe samе has been changed or modified by tbe Constitution or by statutory enactment. [Section 8047, R. S. 1909.] Tbe fact that a portion of tbe common law on this subject was written into our Constitution should certainly not be given the effeсt of having repealed tbe remaining portion of tbe common law on the subject unless tbe constitutional provision should be found to be in conflict therewith. [Sec. 8047, supra.]
Tbe common law general rule аpplicable to tbe situation now held in judgment was quoted with approval by this court from Cooley on Constitutional Limitations in tbe case of State v. Webster,
*9 “A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus chаrged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi еntered by the pros editing officer against his will, or by a discharge of the jury and continuance of the cause.”
There are certain well known exceptions to this general rule and a large number of them will bе found discussed in the learned opinion by Paris,-J., in State v. Buente,
We find no statute in this State which changes or conflicts with the above mentioned general rule of the common law applicable tо the facts in the case at bar. That being true the rule should be considered as remaining in full force and effect. Applying said rule to the facts held in judgment in the case at bar it clearly appears that dеfendant was placed in jeopardy under the second count in the original information and that the same constitutes a bar' to a prosecution under the amend *10 ed information. Such being the ease defendant’s plea of former jeopardy should have been sustained.
It therefore follows that the judgment must be reversed and the defendant discharged. It is so ordered.