168 Ind. 588 | Ind. | 1907
Appellee was charged by affidavit, before a justice of the peace, with selling intoxicating liquor to a “person at the time in a state of intoxication, knowing him to be in a state of intoxication,” in violation of §573 of an act concerning public offenses, approved March 10, 1905 (Acts 1905, pp. 584, 720, §2219 Burns 1905). He was tried and convicted, and appealed to the court below, where he filed a plea in bar, averring, in substance, that before the affidavit in this case was filed, but on the same day, appellee had been placed upon his trial, upon an affidavit charging him with giving intoxicating liquors, in violation of §2219, supra, to the same person to whom he is charged with selling intoxicating liquor in this case; that before said trial was concluded, but after jeopardy had attached, said justice of the peace, .on motion of the prosecuting attorney, without the consent of appellee, dismissed said charge of giving away, etc. That said charge upon which appellee had been placed upon trial as aforesaid is for the same offense which is stated and charged in the affidavit in this cause.
*591 “§1052. * * * The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could mot, it can be. And—§1053. (1) The case of variance is merely illustrative. In other eases also, this test is equally applicable and nearly universal. Thus—(2) Wrong Oounty. If the acquittal is by reason of the indictment’s being brought in the wrong county, it will not bar fresh proceedings in the right one. So—(3) Other Person Injured. An acquittal for the larceny of the goods of one person will not bar an indictment for the same larceny charging them to be another’s. Again—(4) Larceny and Ealse Pretenses. One acquitted of petit larceny, then indicted for obtaining the same goods by false pretenses, may on the former evidence, if in law incompetent for conviction on the former charge, be found guilty of the latter. Also—(5) Larceny and Conspiracy—Or Receiving. After an acquittal for larceny, the defendant may be convicted of obtaining the same chattels through a conspiracy with third .persons, or of receiving them as stolen goods.”
This court said in Smith v. State, supra, on page 557:"
“The true test to determine the sufficiency or insufficiency of a plea of former acquittal as a bar to the pending prosecution, is this: would the same evidence be necessary to secure a conviction in the pending, as in the former, prosecution ? If it would be, then the plea of former acquittal would be a complete bar to the pending prosecution; otherwise, the plea would not be sufficient.”
It follows that the court erred in overruling the demurrer to said plea in bar.
Judgment reversed, with instructions to sustain the demurrer to said plea in bar, and for further proceedings not inconsistent with this opinion.