Thе defendant was convicted of the crime of engaging in the liquor traffic by making sales of intoxicating liquor. On June 17, 1925, he was found guilty as charged.
The defendant pleaded not guilty. In addition, he interposed the plea of previous acquittal and former jeopardy of the offense charged in the information.
Only two assignments of error are urged, one based upon a ruling of the trial court in excluding certain evidence, and the other relating to the plea of former jeopardy.
The statе .called one Cyseewski as a witness for the prosecution. It appears that he was in the employ of the state or the state’s attorney for the purpose of gathering evidence of violations of the prohibition law. On cross-examination, counsel for the defendant asked him the following question: Q. “How much did the state’s attorney pay you when you were in his employ ?” To this question the state’s attorney objected on the ground that it was “improper cross-examination.” The objection was sustained, and this ruling is assigned as error. The inference is necessary from the testimony that this witness was a paid detective in the employ of the county or the state’s attorney for the purpose of securing evidence against this defendant; that the plan of action was laid out in advance by the witness and the state’s attorney. The witness claimed his privilege and refused to answer certain questions on the ground that his answers might incriminate himself. The defendant’s attorney strenuously urges that he should have been permitted to show by cross-examination any and all facts tending to show interest or bias; that the amount of his compensation was a matter which he had a right to show as bearing upon his interest in the controversy and as showing bias and prejudice. '
The facts, with reference to the plea of former jeopardy and former acquittal, are as follows: On June 16, 1924, the state’s attorney of Mountrail county, the predecessor of the present incumbent of that office, filed an information in the district court, charging this defendant with the crime of engaging in the liquor traffic; “Committed as follows: *673 That at said time and place tbe said Jack Pancbuk did wilfully and unlawfully manufacture, sell, barter, transport, import, export, deliver, furnish and possess intoxicating liquor.” This is tbe language of tbe statute, except that tbe disjunctive “or” is used in tbe law, and not tbe conjunctive “and” as in tbe information. Tbe defendant is thus in reality charged with committing nine offenses on May 28, 1924.
Upon tbe trial of that action, on June 17, 1924, the jury returned a general verdict of not guilty. On June 15, 1925, tbe present state’s attorney filed tbe information under which the defendant was convicted, and charged, as heretofore stated, that tbe latter engaged in tbe liquor traffic between January 1, 1924 and May 11, 1925, Tbe specific contention of counsel is that tbe defendant was placed in jeopardy by this information for tbe second time, because May 28, 1924, tbe day on which be was charged in tbe first information with having engaged in tbe liquor traffic, is included in tbe period of January 1, 1924 to May 11, 1925. It is urged that inasmuch as tbe second information overlaps tbe period covered by the first, tbe defendant is again in jeopardy for tbe same offense.
No evidence was offered by the state tending to show that tbe defendant committed tbe crime charged at any time before June 17, 1924, tbe day on which be was acquitted of tbe charge made in tbe first information; tbe trial court specifically instructed tbe. jury that they should not consider any evidence in this case as to tbe commission of tbe crime of engaging in tbe liquor traffic on or prior to June 17, 1924, and should convict only in the event that they were satisfied, beyond a reasonable doubt, that tbe defendant committed tbe crime charged in tbe information on or after June 17, 1924. They were instructed to make a special finding upon tbe claim of former acquittal and a form of verdict was submitted for that purpose. They found that the defendant bad not been acquitted of tbe offense on which bе was tried. There is nothing in tbe record showing what evidence was offered in support of tbe first information.
1. It is always permissible to prove facts and circumstances tending to show tbe bias or prejudice of a witness. Ordinarily the cause or tbe particulars of such bias are not legitimate subjects of inquiry, except so far as tbe trial court, in tbe exercise of a sound discretion, permits. In tbe case at bar it appears, without dispute, that tbe witness was in
*674
tbe employ of the state for thе purpose of collecting evidence of violations of the prohibition law. Counsel for the prisoner was not satisr fied to establish this fact, but desired to prove the amount of the compensation. There is no offer of proof either as to the amount of the compensation, or as to whether such amount was in any manner eon-, tingent upon the outcome of the prosecution. Undoubtedly the discretion of the trial court should be liberally exercised to the end that the jury may have before it every fact tending reasonably to disclose any circumstances which, if present, may cast doubt upon the existence of that wholly disinterested frame of mind essential to complete confidence in the candor of a witness. The defendant has a legal right to show that a witness for the state is prejudiced against him. State v. Hakon,
2. When the defendant pleads former jeopardy he is required by subdivision 4 of § 10,747, to specify the time, place and the court when and where such jeopardy occurred. The defendant in the case at bar complied in all things with this, statute. See also State v. Barnes,
The argument of counsel, on this assignment, assumes that the crime of engaging in the liquor traffic is a continuing offense. In this counsel is in error. One sale of .intoxicating liquor is sufficient to constitute the crime of engaging in the liquor traffic, as that crime is defined in chapter 268, Sess. Laws 1923, as amended by chapter 115, Sess. Laws 1925. The gravamen of the offense is not that the.. accused has manufactured, sold, bartered, transported, imported, exported, delivered, furnished or possessed intoxicating liquor as a continuing offense, over any definite period оf time, but that he has done any one of these acts on at least one occasion. It is no less an offense to commit any of these prohibited acts once than to do them continuously over a period of days, weeks, or months. The latter course of conduct may evidence a more deliberate purpose to embark upon a career of lawbreaking than does a single transaction, but the single transaction is, notwithstanding, what the legislature primarily intended tо bring within the condemnation of the law. State v. Howe,
Sec. 10,881, Comp. Laws 1913, provides for a special verdict, or separate finding upon the plea of former jeopardy. Clearly, the legislature contemplated that upon this question an issue of fact might arise and that the defendant had the constitutional right to a verdict from the jury thereon. There is no suggestion in the statutes of this state that the issues made by a plea of former conviction or acquittal shall be determined by the court, as a question of law, from an inspection of the record. Like every other question of fact, which is pertinent upon the issue of the guilt or innocence of the prisoner, it must be answered by reference to competent and material evidence, whether such evidence be written instruments, official documents, or rest in parol. Under the constitutional guaranty of a jury trial, the defendant has a right to require this issue, in so far as it is one of fact, to be submitted to .the jury under appropriate instructions as to the law. 2 Bishop, Crim. Proc. p. 634.
The plea of former acquittal is a favored plea; People v. Preciado,
The language of § 13, of the Bill of Eights of the Constitution of North Dakota is “no person shall be twice put in jeopardy for the same offense. . . .” The California courts hold that this language is more than an equivalent of “no person shall be twice
tried
for the same offense.” To the same effect, see Unitеd States v. Ball,
In State v. Virgo,
Burton v. United States,
Manning a United States,
*678
In State v. Nunnelly,
In a note to People v. McDaniels,
Counsel strongly insists that the case at bar must be decided by a literal application of this test — of what might have been proved, not what was in fact proved.
In the case at bar, proof of a sale of intoxicating liquor on May 27, 1924, would have sustained a conviction under the second information filed against the dеfendant. Every fact required to be established by the state on the trial under the first information, in order to warrant a conviction, would have been sufficient, in law, to support a conviction under the second. Reversing the situation this is true of only one date and one sale in a prosecution under the second information. Section 13 of the Bill of Rights distinctly provides that no one shall be twice put in jeopardy for the same offense. When the second information was filed against him and a jury sworn аnd empaneled, and all the preliminaries had been completed, he was in jeopardy within the Constitution. *679 Bishop, Crim. Law, 9th ed. §§ 1014 and 1015, and there must be a reversal if the offenses were the same “in fact and in law.”
The constitutional and statutory guaranty is against a second jeopardy for the
same offense.
In order that one prosecution may be said to be for .the same offense as another, within the language of the test as formulated by the weight of authority, it must appear that the offenses described in the informations or indictments are the same
"in laiv and in fact.”
The question of identity therefore, is one of
law
and
fact.
It would seem that the act, on which the informations are based must be one and the same, and also, that the legal character of the crimes charged must be the same. No test is fully adequate which does not serve as a standard in measuring the identity of the crimes both from the standpoint of identity of fact and identity of legal nature. By way of illustration reference may be had to the crimes of boot-legging and of engaging in the liquor traffic. Clearly, еvidence which would convict under an information charging the crime of boot-legging might also be sufficient to support a Conviction under another charging the same person with engaging in the liquor traffic by selling intoxicating liquor. Reversing the facts in' this hypothetical case, would bring about a contrary result. The facts that are legally necessary and sufficient to support a charge of engaging in the liquor traffic, would not support a conviction under an information charging boot-legging. Notwithstanding a substantial identity of fact, it clearly appears that the legal nature of the two offenses is essentially different. Without extending the discussion on this point, we are satisfied, as suggested by Mr. Freeman in the note to People v. McDaniels,
We are not prepared to accept the test as always sufficient in determining whether the offenses are the same in fact. Proof of the precise time alleged in the first information — May 28, 1924 — was not essential. Joyce, Indictments, 2d ed. p. 424, “Ordinarily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient.” Ledbetter v. United States,
The information in the first case was at least prima facie evidence of the identity of the legal nature of'the two offenses. Whether it was prima facie evidence of identity in fact, we need not decide. For the purpose of this decision we may assume that it was. Each sale of intoxicating liquor was a sexDarate, distinct and complete offense, defined in the law as engaging in the liquor traffic. The state offered evidence in support of the charge tending to show sales in November, 1924, and early in 1925. There was no evidence that' the defendant engaged in the liquor traffic prior to November, 1924. The defendant offered no evidence other than the first information, to show that the huo offenses were identical in fact. The state proved that they were not. The court instructed the jury that “you should not consider any evidence in this case as to the commission of the crime of engaging in the liquor traffic on or prior to Junе 17, 1924the date on which defendant was acquitted under the first information. The court also told the jury, pursuant to § *681 10,881, Comp. Laws 1913, tbat they must make a finding upon tbe question of former jeopardy. Tbe jury found tbat tbe defendant bad not been previously acquitted of tbe offense of wbicb be was found guilty under tbe second information.
It follows tbat while tbe application of tbe test heretofore discussed results in tbe conclusion tbat upon tbe face of tbe informations, tbe offenses charged were tbe same in legal nature, all tbe evidence upon tbe subject shows tbat they were not tbe same in fact and tbe jury so found. Tbe verdict on this point is supported by competent and un-contradicted evidence. See State v. Pianfetti,
We are of tbe opinion tbat tbe statement of tbe test in State v. Virgo,
Tbe acts on which tbe state based its demand for a conviction were all committed by tbe defendant not only after tbe date charged in tbe first information, but after tbe date on wbicb tbe jury acquitted defendant of tbat charge. Patently, tbe two offenses could not be tbe same in fact.
Tbe case of State v. Lesh,
“We now bold tbаt after a conviction or acquittal under such an information, a defendant cannot be put on trial for tbe keeping of liquor for sale as a beverage within tbe dates specified, and such being tbe case, be is granted all tbe protection tbat tbe common law afforded, for even *682 though the common law may have required a specific date to be stated, it by no means limited the proof of that day.”
It requires no argument to demonstrate that the situation in the case аt bar is different in essential particulars. As we have pointed out, each sale is a complete, separate and distinct crime — i.e., the charge in the instant case is not that a
continuing offense
was committed. For precisely the same reason the case of Com. v. Robinson, 126 Nass. 259,
Nothing would be gained by an extended review of authorities which in many particulars are in hоpeless conflict and confusion. We think the rule we have applied on the one hand, fully effectuates the constitutional provisions against double jeopardy, and, on the other, safeguards the public interest against miscarriages of justice that would result, if identity of legal nature alone, whether appearing upon the face of the information, or by evidence aliunde, without regard to identity in fact, were held sufficient to support the plea of former acquittal.
The judgment is affirmed.