
    People v. Meakim et al.
    
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    
      Í. Criminal Law—Pleas—Former Acquittal.
    Under the provisions of Code Grim. Proc. N. "ST. § 340, a plea of former acquittal is properly overruled when the record shows that the former verdict of not guilty was found on the ground of a variance between the proof and the indictment.
    2. Estoppel—By Record—Criminal Cases.
    Defendant, in support of his plea of former acquittal by such a verdict, cannot maintain that the variance was not material where the record shows that at the former trial he contended that it was material, and the court directed the verdict expressly on that ground.
    Appeal from court of oyer and terminer, New York county.
    This was an indictment against Alexander Meakim, Joseph Koch, and Edward T. Fitzpatrick, commissioners of excise, charging them witli a misdemeanor in willfully neglecting for an unreasonable time to decide a complaint before them of the sale of liquor in a certain saloon on election day. From an order arresting judgment on a verdict in their favor on the trial of a plea of former acquittal, interposed by defendants, the people appeal.
    For former report, see 10 N. Y. tiupp. 161.
    Argued before Barrett and Patterson, JJ.
    
      De Lancey Nicoll, Dist. Atty., for the People. Richard S. Newcombe, Edgar M. Johnson, and A. J. Dittenhoefer, for respondents.
   Barrett, J.

Upon the face of the record the plea was properly overruled. The verdict rendered upon the trial under the first indictment was not on the merits It was directed by the learned recorder because of his opinion that there was a variance between the proof and the indictment. The verdict, as recorded, reads as follows: “The jury, without leaving the bar, say they find the defendants not guilty, on the ground of variance between the proof and the indictment.” Upon the face of the record, therefore, the case is brought within section 340 of the Code of Criminal Procedure, which provides that, “if the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, * * * it is not deemed an acquittal of the same offense.” This section was a substantial re-enactment of the law as it existed under the Revised Statutes. 2 Rev. St. p. 701, § 24. If the case stood upon the record alone, there would, therefore, be no difficulty with regard to the result. We would only have to follow the plain terms of the statute, as was done in Canter v. People, 1 Abb. Dec. 305. There the plea presented the ground of acquittal on the former trial in the very words of the Revised Statutes, namely, “on the ground of a variance between lhe indictment and the proof.” Upon this the court said: “We are therefore admonished by this clear and explicit declaration of the statute that an acquittal upon such ground forms no bar to a trial and conviction upon a subsequent indictment for the same offense. This plain provision of the statute law of the state disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.” The distinction between that case and the present lies in the fact that the defendants here dispute the ground of acquittal as expressed in the record, and insist that there was no material variance between the indictment and the proof. Their contention is that the learned recorder erred in tins regard, and that, consequently, they should now have the advantage of a general verdict of acquittal upon the merits. Whether the variance referred to was or was not material, we think the defendants cannot now be permitted to question the position which they took upon that head on the former trial. The record of that trial distinctly shows that the defendants there claimed that the variance was material; that because of its substantial character certain evidence offered by the people, tending to show that a license had been duly issued to one Ahrens, was inadmissible; and that an amendrn ent which would let in such evidence was not within the power of the court-to grant. Having requested the court to rule in their favor in these particulars, and the court having thereupon directed an acquittal upon these very grounds, they cannot now be heard to say that there was -no material variance, that the evidence offered should not have been excluded upon their objection, and that the people should have been permitted to proceed with their case. In other words, they must, under such circumstances, take the acquittal as it was directed and recorded, and they cannot now be permitted to go behind the record as it was thus made up. As matter of fact they were not acquitted upon the merits, and as matter of law their jeopardy ceased when the court held, at their request, that there was a material variance between the indictment and the proof offered. The precise question does not seem to have been, presented in any adjudged case, but the general principle is well settled that, in criminal as well as in civil cases,, a defendant must be held to the position-which he assumes, and upon which he requests and secures a favorable judgment or other personal advantage. This principle, of course, is subject to the limitation that consent cannot confer jurisdiction, or waive the procedure required by the constitution. In illustration of this general principle, Mr. Bishop says (1 Crim. Law, 7th Ed., § 1000) that: “When the indictment is-good, yet the court, supposing it not good, erroneously arrests judgment on the defendant’s application, if .the prosecutor may have this judgment of arrest reversed for the error he cannot maintain a new indictment, because his prisoner is still in jeopardy under the old, which is liable to be revived by a reversal of the judgment of arrest. But in states where the erroneous judgment of arrest cannot be called in question the prisoner’s jeopardy has ceased, at his own request, and for his own benefit; therefore he may be proceeded against anew.”So in Gerard v. People, 3 Scam. 364, Treat, J., observed that: “In civil eases parties are never permitted to assign for error decisions of the court, made at their instance, or with their consent; and we are aware of no good reason why the rule should not be applied to criminal cases, except in cases where jurisdiction is sought to be conferred upon the court by consent.” And in King v. People, 5 Hun, 300, this language was used by Boardman, J.: “If the irregularity was not fatal to any conviction that might be had, and the prisoner yet insisted upon the defect, and objected to further proceedings upon the trial, that was equivalent to asking for the discharge of the jury, and consenting thereto. The general opinion is that the consent of the prisoner to the discharge of the jury will obviate any objection founded on his constitutional privilege.” See, also, People v. Casborus, 13 Johns. 351; Croft v. People, 15 Hun, 486, 487; Com. v. Gould, 12 Gray, 171. We think, therefore, that the plea of formal acquittal was properly overruled, and that the motion in arrest should have been denied.

The other question raised upon this appeal, namely, whether the indictment states facts sufficient to constitute a crime, does not appear to have been presented upon the motion in arrest of judgment. The sole question, then, before the court, so far as appears from the record, was whether the defendants' had been twice put in jeopardy. We think, however, that the facts alleged in the indictment sufficiently state a crime within section 117 of the Penal Code, and that no special discussion on that head is required. We concur with Judge Martine in the opinion which he delivered upon overruling the demurrer interposed by the defendants to the first indictment. See, also, People v. Meakim, (Sup.) 10 N. Y. Supp. 161, affirmed 123 N. Y. 660, 26 N. E. Rep. 749; People v. Jones, 54 Barb. 311; People v. Brooks, 1 Denio, 457. The order appealed from should therefore be reversed.  