#### STATE vs. JAMES BIRMINGHAM.

The plea of autrefois acquit is no available defence, unless the facts charged in the second indictment would, if true, have been sufficient to support the first.

As, where the defendant was indicted for retailing spirituos liquor to one J, S., and it appeared that, upon the same facts, under a former indictment for retailing to “ some person to the jurors unknown,55 he had been acquitted, upon the ground that the retailing was to the snid J. S., and not to oue unknown : — Held that the plea of autrefois acquit was no bar to the second indiotment.

(Thecase'of Stater. Jesse, 3Dev. & Bat. 98, cited and aproved.)

Appeal from Anson Superior Court of law, Spring Term, 1852, his Honor, Judge Ellis, presiding.

The defendant was indicted for retailing spirituous liquor to one John Smith. Pleas — not guilty and former acquittal. Upon the trial, the jury returned a special verdict, as follows : “ That the defendant was guilty of selling spirituous liquors to “John Smith, as charged in the bill of indictment. And they “ further find that a previous trial had taken place upon the same “ facts, on an indictment charging the sale to be to a person un- “ known, and the defendant was acquitted because it appeared “ that the name of the person was known, and that it was the “ said John Smith: And if, in law, upon these facts the former “ acquittal is a bar to this indictment in the opinion of the Court, “ then they find that the defendant was formerly acquitted of this *121 “ charge; but if the Court should be of opinion that, upon these “ facts, the former acquittal is not a bar to the defendant’s con- “ viction on this indictment, then they find that he was not for- “ merly acquitted.”

His Honor, the presiding Judge, being of opinion in favor of the defendant, rendered judgment accordingly, and the Solicitor for the State appealed.

Attorney General, for the State.

J. U. Bryan, for the defendant.

Nash, C. J.

The defendant pleads that he was heretofore tried and acquitted for the same offence. This is a bar to the indictment, if found to be true, and is founded upon the principle of the common law, that no one shall be brought into jeopardy of his life more than once for the same offence. And hence, says Justice Blackstone, it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment for any offence, before any Court having competent jurisdiction of the crime, hé may plead it as a bar to any subsequent accusation for the same crime. 4 Bl. Com., 335. In order, however, to the efficacy of the defence, it is necessary the first indictment should be such that he could have been convicted on it. The plea must aver that the person mentioned in the first indictment, is the same person as is mentioned in the second. The averment is as follows : “ And the said J. S. in fact saith, that he, said J. S., and the said J. S. so indicted and acquitted, as last aforesaid, are one and the same person, and not other and different persons, <fcc.” Arch. Cr. PL 89. In an indictment under our Statute against retailing spirituous liquors by the small measure, without having a license so to do, it is necessary to set forth the name of the individual to whom the spirits were sold ; or that the indictment should aver, it was to some person unknown — as in the case before us. Now if the precedent in Mr. Archbold is correct, then a plea of autrefois acquit can never apply to a case where the indictment is framed as the one embraced in this plea is; because there is no one mentioned in it, with whom the trading was, and there can be no identity with tire defendant in the *122second. The case stated that the defendant was acquitted on the first trial;, because it was proved that the person unknown, to whom it was alleged that the spirits were sold, was John Smith. Upon the evidence, the defendant was rightly acquitted under the first indictment, because it did not support the averment. The person was not unknown, but known, and the propriety of that acquittal is not questioned.

Does that verdict protect the defendant under the present charge ? The true criterion, by which the question is to be decided, is, whether, the evidence necessary to support the second indictment, would have been sufficient to convict the defendant on the first. What evidence was necessaiy to sustain the second indictment in this case"? That the spirits were sold to John Smith, as charged in the indictment — would that evidence have sustained the first? Certainly not; for the moment it was proved to whom it ivas sold, as we have already said, the charge in the first indictment was falsified, and the defendant entitled to his discharge. If an indictment charges a burglary, with an intent to commit a larceny, and does not charge an actual larceny, an acquittal on it is no bar to a subsequent indictment for the larceny, because the defendant could not have been convicted of the larceny upon the first. Rex v. Vandercomb, 2 Leach, 716; 2 Hale, 245. But an acquittal on an indictment for murder is a •bar to a subsequent one for manslaughter; because the priosoner might have been convicted of it upon the first indictment. 2 Hale, 246. Foster 329. In the case of Vandercomb above referred to, Justice Buller, after reviewing all the cases upon the subject, lays down the rule as before stated: u These cases (he observes,) establish the principle, that unless the first indictment were such as the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal on the first can be no bar to the second. In the State v. Jesse, 3 Dev. & Bat. 98, the above opinion of Justice Buller is stated as containing the law upon this subject. We conclude then, as the defendant could not have been convicted upon the first indictment, under the evidence necessary to support the present one, the plea of autrefois acquit ivas no bar to the latter, and that the State *123■was entitled to judgment upon the special verdict. The judgment below is reversed. This opinion will be certified.

Per Curiam. Judgment reversed.