
    Third Appellate Department,
    May Term, 1901.
    Reported. 61 App. Div. 312.
    The People of the State of New York, Respondent, v. Orneldo Satchwell, Appellant.
    Conviction under an indictment for the sale of intoxicating liquors—When it Is a bar to a subsequent conviction under another indictment— Effect of a piea of guilty to an indictment.
    
      A conviction on a plea of guilty to an indictment is a bar to a subsequent prosecution for any offense which was provable against the accused under that indictment.
    A conviction on a plea of guilty to a charge that the defendant, on or about the 30th day of December, 1898, at the town of Candor, sold by retail "to Gardiner C. Hibbard, and to other and divers persons to this grand jury unknown, and did deliver in pursuance of such sale to the said Gardiner C. Hibbard (and to the said other and divers.persons) strong and spirituous liquors’* in quantities of less than five gallons at a time, without having any liquor tax certificate granted to him, is a bar to a subsequent conviction under an indictment charging that on or about the 30th day of December, 1898, at the town of Candor, the accused sold by retail "to Frederick J. Bryant, and did deliver, in pursuance of 'such sale, to the said Frederick J. Bryant, and divers other persons to this jury unknown, strong and spirituous liquors” in quantities of less than five gallons at a time, without having any liquor tax certificate granted to him, as the sale to Bryant charged in the second indictment could have been proved under the first indictment.
    Appeal by the defendant, Orneldo Satchwell, from a judgment of the County Court of Tioga county in favor of the plaintiff, rendered on the 11th day of June, 1900, upon the verdict of a jury convicting him of a violation of the Excise Law, also from an order entered in said clerk’s office on the 12th day of June, 1900, overruling a plea of a former conviction, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    At a Trial Term of the Supreme Court held in Tioga county in March, 1899, the grand jury found an indictment against the defendant, charging that on or about the 30th day of December, 1898, at the town of Candor, in that county, the defendant sold by retail “ to Gardiner C. Hibbard, and to other and divers persons to this Grand Jury unknown, and did deliver in pursuance of such sale to the said Gardiner C. Hibbard (and to the said other and divers persons) strong and spirituous liquors ” in quantities of less than five gallons at a time, without having any liquor tax certificate granted to him.
    The defendant was arraigned under this indictment, pleaded guilty and was sentenced by the court to pay a fine of $200.
    At a June term of the County Court of the county of Tioga the grand jury found an indictment against the defendant, charging that on or about the 30th day of December, 1898, at the town of Candor, in that county, the defendant sold by retail “ to Frederick J. Bryant, and did deliver, in pursuance of such sale, to the said Frederick J. Bryant, and divers other persons to this jury unknown, strong and spirituous liquors” in quantities of less than five gallons at a time, without having any liquor tax certificate granted to him.
    On arraignment under this indictment the defendant entered a plea of a former conviction.
    The trial of this issue was had before a jury of that county and a verdict was rendered for the People. On the trial it appeared by the testimony of the witnesses Bryant and Gardiner, the special agents of the Excise Department, who made the complaint against the defendant, that they had been at defendant’s hotel and boug’ht liquor on but one occasion, and that was on December 30, lb98. Hibbard and Bryant each bought from the defendant and paid for intoxicating liquors which were drunk by themselves and others, and Bryant bought liquor whicn was not drunk. Their testimony before the grand jury that found the first indictment was substantially the same as their testimony before the grand jury that found the second indictment.
    From the judgment entered on the verdict of the jury and from the order of the court denying defendant’s motion for a new trial, this appeal was taken.
    
      John P. Wheeler, for the appellant.
    
      Oscar B. Glezen, for the respondent.
   Edwards, J.

On the undisputed facts in this case the defendant, on his plea of a former conviction, was entitled to judgment.. The burden was on him to show a conviction of an offense identical with the one with which he was charged in the second indictment. This he established, prima facie, by the production of the record showing a conviction under an indictment which could be sustained by the evidence necessary to support the second indictment; and it was then incumbent on the prosecution to show that the conviction was, in fact, for a different offense. (3 Greenl. Ev. § 37; 17 Am. & Eng. Ency. of Law [2d ed.], 597; People v. M’Gowan, 17 Wend. 386; Commonwealth v. Robinson, 126 Mass. 259.)

I think there can be no'question that under the first indictment charging the defendant with selling strong and spirituous liquors at the town of Candor on December 30, 1898, “to Gardiner C. Hibbard, and to other and divers persons to this Grand Jury unknown,” the prosecution could have proved the sale by the defendant, on that day, in that town, of strong and spirituous liquors to Frederick J. Bryant as charged in the second indictment. The offense consisted in the sale of liquor without a liquor tax certificate, and under the designation “to other and divers persons,” proof may be given of sale to any individual. (People v. Adams, 17 Wend. 475; People v. White, 55 Barb. 606.)

It is true that each sale of liquor without a license is a distinct offense, and the prosecution proved sales made by the defendant on December thirtieth to both Hibbard and to Bryant, but the only effect of this was to show that there could have been a conviction under the first indictment for a sale to Hibbard. So there could have been for a sale to Bryant. Had the conviction been the result of a trial, the record might have shown that it was, in fact, for an offense other than the one now charged; but the defendant having pleaded guilty to the first indictment, his conviction on that plea was, in legal effect, of any offense which was provable against him under that indictment. Such a plea “ is a record admission of whatever is well alleged in the indictment.” (1 Bish. New Cr. Proc. [áth ed.] § 795.)

If an anomalous result is thus produced, it is attributable to the form of the pleading in the first indictment. Had it charged the sale of intoxicating liquors on that day to Hibbard only, the plea of guilty would have been of an offense which would have been readily distinguishable from the one charged in the second indictment.

The judgment and order denying a new trial should be reversed.

All concurred.

Judgment and order reversed and defendant discharged.  