103 N.W. 610 | N.D. | 1905
The defendant was tried and convicted upon an indictment charging ’him with keeping an-d maintaining a common n-uisance upon lots 11 and 12, in block 12, in the original townsite of Richburg, in Bottineau -county, and -he appeals from the judgment.
The trial judge, in his instructions to the jury, after stating that the indictment alleged three methods of keeping and maintaining the nuisance, i. e., by keeping a p-la-ce (1) where intoxicating liquors
The record presents a further question which will arise upon •the new trial, and' will therefore be considered. The defendant, in addition to his plea of not guilty, interposed a plea of former acquittal. To sustain this plea, he introduced in evidence an information, which had previously been filed in the district court of that county by the state’s attorney, which charged the defendant with maintaining a liquor nuisance on lot 12 in block 11, in the original townsite of Richburg; also a general verdict of not guilty. Upon cross-examination of several of the state’s witnesses, the fact was developed that their testimony was the same in substance as upon the former trial. At the close of the case defendant’s counsel moved the court to advise the jury to return a verdict “that the defendant had once been acquitted of the same offense.” This was denied, and the question as to. whether the defendant had been once acquitted of the offense for which he was being tried was submitted to the jury, and they returned a separate verdict that he had not. ' The refusal of the trial court to grant the above request is assigned as error. The assignment is without merit. The offense for which the defendant was being-tried was not the offense for which he had been acquitted. Upon the former trial he was charged with keeping a liquor nuisance upon block 11, and in the present indictment with keeping a nuisance upon black 12. The accusations charge different offenses, and it was not possible to make them the same, even by averment .and oral evidence. The plea of formal aquittal “is only available in cases where the transaction is the same, and the two indictments are susceptible of and must be sustained by the same proof.” Wright v. State, 17 Tex. App. 158. The rule of the cases is stated in Hite v. State, 9 Yerg. 357, 375, as follows: “To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crime charged in the last bill of indictment foe precisely the same with that charged in the first, and that the first bill of indictment is good in point of law. 1 Chittty’s Crim. Law, 453; 1 East’s Pleas of the Crown, 522. The true test by which the question
Judgment reversed, and new trial ordered.