State v. Littlefield.

chaser of the goods. But such is not the case. This action is in favor of the shipper and the plaintiff has acquired no new rights, has in no respect changed his condition in consequence of the admissions made as to the quality of the goods.

Exceptions sustained.

APPLETON, C. J., WALTON, BARROWS, LIBBEY and SYMONDS, JJ concurred.

STATE. V. LITTLEFIELD.

(70 Me. 452.)

Criminal law-former conviction.

A former conviction of assault and battery is no bar to an indictment for manslaughter, where the injuries resulted in death after the former conviction (See note, p. 339.)

[NDICTMENT for manslaughter. The opinion states the case.

W. H. White, county attorney, for State.

L. H. Hutchinson and A. R. Savage, for defendant, cited Com. . Bosworth, 113 Mass. 200; s. c., 18 Am. Rep. 467.

LIBBEY, J. This is an indictment for manslaughter. The indictment alleges, in substance, that the defendant on the 3d day of March, 1879, made an assault upon one George Morton, and inflicted upon him certain mortal wounds, of which he died on the 23d of said month.

The defendant pleaded in bar a former conviction of simple assault and battery upon said Morton, on said 3d day of March, before the municipal court of Lewiston, on the 4th day of said March.

To this plea the county attorney filed a general demurrer, which was joined, and the demurrer was sustained by the court, and the defendant ordered to plead over, and thereupon pleaded guilty.

The case comes before this court on exceptions to the foregoing ruling, with the stipulation that if the plea in bar is adjudged

State v. Littlefield.

good by this court the defendant is to have leave to withdraw his plea of guilty.

No objection is made in argument to the sufficiency of the defendant's plea in bar, but the case is presented by both sides upon the facts, assuming that the pleadings are in proper form to raise the legal questions involved. We therefore have no occasion to consider the sufficiency of the plea either in form or substance. The precise question presented is whether the conviction of the defendant before the municipal court of Lewiston, on the 4th day of March, of simple assault and battery, for the same battery of which Morton died on the 23d day of March, is a bar to the indictment for manslaughter.

The plea of former conviction, like that of former acquittal, is founded upon that great principle and fundamental maxim of criminal jurisprudence, that no man shall be twice put in jeopardy for the same offense. This is one of the ancient and well-established principles of the common law, sanctioned and enforced in the Constitution of this State in the following words: "No person, for the same offense, shall be twice put in jeopardy of life or limb." Const. of Maine, art. 1, § 8. This clause is in substance embraced in most, if not all, of the Constitutions of the several States, and in the Constitution of the United States, and as construed by the court is equivalent to a declaration of the common-law rule that no person shall be twice tried for the same offense.

To constitute a bar to the indictment against the defendant it is a well-established rule that the former conviction must have been for the same offense in law and in fact.

Mr. Justice BLACKSTONE states the rule thus: "It is to be observed that the pleas in autrefoits acquit and autrefoits convict, or a former acquittal and a former conviction, must be upon a prosecution for the same identical act and crime." 4 Black. Com. 336.

It is believed that this rule is uniformly recognized and sanetioned by courts governed by the rules of the common law. Rex v. Vandercomb, 2 Leach C. C. 708; Stark Cr. Pl. 355 (1 Am. ed.); Com. v. Roby, 12 Pick. 496; 2 Lead. Cr. Cas. 555 (note by B. & H.), and cases there cited.

Mr. Chitty states the rule as follows: "As to the identity of the offense, if the crimes charged in the former and present prosecution are so distinct that evidence of the one will not support the

State v. Littlefield.

other, it is inconsistent with reason, as it is repugnant to the rules of law, to say that the offenses are so far the same that an acquittal of the one will be a bar to the prosecution of the other." 1 Chit. Cr. Law, 453.

In Com. v. Roby, SHAW, C. J., says: "In considering the identity of the offense it must appear by the plea that the offense charged in both cases was the same in law and in fact."

The general rule by which it is to be determined whether an acquittal or conviction on one indictment is a good bar to another is stated by many authorities in substance as follows: If 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 or conviction on the first indictment will be a bar to the second. Rex v. Vandercomb, supra; 2 East's P. C. 522; Com. v. Roby, supra.

This general rule is however subject to this exception. When after the first prosecution, a new fact supervenes, for which the defendant is responsible, which changes the character of the offense, and together with the facts existing at the time constitute a new and distinct crime, an acquittal or conviction of the first offense is not a bar to an indictment for the other distinct crime. Case of Nicholas, Foster Cr. L. 64; Com. v. Roby; Burns v. People, 1 Park.' 183; Com. v. Evans, 101 Mass. 25; State v. Hattabough, 66 Ind. 223.

Com. v. Roby was an indictment for murder. The defendant pleaded in bar a conviction of assault with intent to murder, before the death of the party assaulted. SHAW, C. J., in discussing the question of the identity of the offenses, says: "The indictment for murder necessarily charges the fact of killing as the essential and most material fact, which gives its legal character to the offense. If the party assaulted after a felonious assault dies within the year and a day, the same act, which till the death was an assault and misdemeanor only, though aggravated, is by that event shown to have been a mortal wound. The event, strictly speaking, does not change the character of the act, but it relates back to the time of the assault, and the same act, which might be a felonious assault only had the party not died, is in truth shown by that event to have been a mortal wound; and the crime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony. The facts are essentially different, and the legal character of the crime essentially different." The VOL. XXXV —43

State v. Littlefield.

same principle is affirmed in Com. v. Evans, Burns v. People, and State v. Hattabough, supra, which in their facts, are like the case at bar.

At the time of the first prosecution and conviction the defendant had not committed the crime with which he is now charged. True the force had been inflicted upon the body of Morton, but his death had not ensued. The force was acting to produce its effect, and the defendant was as much responsible for its natural and necessary result as if he had all the while been pressing it upon the body of his victim. When death was caused by that force a new and distinct crime was consummated by the defendant, of which he was not before guilty, and for which he could not have been convicted at the time of the first prosecution. The offenses are not the same in fact, and therefore are not identical.

It is claimed in behalf of the defendant, that as by the statutes of this State, the crime of assault and battery is now a felony, he may, under this indictment, be again convicted of that crime and thus be twice punished for the same offense. If the homicide was caused by the injuries inflicted, which is not denied by the plea in bar, but admitted by the plea of guilty, which is a part of the case, the defendant cannot properly be convicted upon this indictment of assault and battery, because it must be either murder, manslaughter or justifiable homicide. Burns v. People, 1 Parker, 183. A conviction of assault and battery would be authorized only on failure of proof that death resulted from the injuries inflicted.

But it frequently happens that a man is in a certain sense, twice punished for the same acts; as when the facts constituting the first offense, taken in connection with other facts, for which he is responsible, constitute a distinct and different offense. In such case, although he has been convicted of the first offense, he may be convicted of the second, notwithstanding that to convict of the second, it is necessary to prove the facts embraced in the first. The rule upon this point is very clearly and fully stated by WALTON, J., in State v. Inness, 53 Me. 536.

But admitting that the defendant may be legally convicted of the crime of assault and battery, on this indictment, still we are of opinion, that under the rules of pleading, he may protect himself from being twice in jeopardy for the same offense. He may plead the former conviction in bar of the offense of assault and battery, embraced in the indictment, and not guilty of manslaughter; and

State v. Littlefield.

then if acquitted of manslaughter, he will have the benefit of his plea in bar. At common law the plea of former conviction in bar must set forth the record of the former conviction, and plead over as to the felony. 2 Hale, 255-392; Arch. Cr. Pr. and Pl. 352; Com. v. Curtis, 11 Pick. 133; Stark. Cr. Pl. 370, 375. Upon this point Starkey says, "and in general the pleading not guilty is no waiver of a special plea, and does not render it double." "But if A., having the king's pardon of manslaughter be arraigned upon an indictment for murder, he ought not to plead not guilty, for he would thereby waive his pardon. IIe ought to confess the indictment as to manslaughter, and plead the king's pardon; and as to killing with malice prepense he shall plead that he is not guilty. Then if he were found guilty of murder, he would have judgment; if acquitted of murder, his plea would be allowed." Stark. Cr. Pl., supra. The same principle applies to a plea of former conviction.

This rule is recognized in Com. v. Curtis, supra, which was an indictment for larceny in a dwelling-house, and a plea of former conviction of larceny. WILDE, J., in the opinion of the court, says: "The defendant should have pleaded autrefois convict as to the larceny, and not guilty as to the residue of the charge."

The result is, that, both on principle and authority, the defendant's plea is not a bar to the indictment.

Exceptions overruled. Judgment for the State.

APPLETON, C. J., WALTON, PETERS and SYMONDS, JJ., concurred.

NOTE BY THE REPORTER.- The following are the material parts of the opinions in State ▾ Hattabough, 66 Ind. 223, where the indictment was for assault and battery with intent to kill, and the prisoner pleaded a former conviction of assault and battery:

WORDEN, J "With this general statement of the law, we come more directly to the question involved: Is a conviction or an acquittal before a justice of the peace, of an assault and battery, a bar to a prosecution for the same assault and battery with intent to commit a felony!

"To free the question from any conrusion of ideas in respect to the jurisdiction of Justices, we think it may be stated as follows: Does a conviction or an acquittal of a simple assault and battery, before a court of competent jurisdiction to try the same, bar a subsequent prosecution for the same assault and battery with intent to commit a felony? "This question must, in our opinion, be answered in the negative, on principles which we regard as well established, though there are some authorities that seem to support a contrary doctrine

"The Constitution provides, that No person shall be put in jeopardy twice for the same offense.'

"By the prosecution for the assault and battery, the appellee was not put in jeopardy at all for the offense of assault and battery with intent to commit the murder; while if upon the trial of the indictment, the State should fail to make out the felonious intent, the appellee could avail himself of the former conviction, so that he could not be punished twice for the same simple assault and battery." State v. George, 53 Ind. 434.