
    The State v. Maxwell.
    1. Criminal Law: evidence: identity of offenses. Where a person was convicted upon a trial on information before a justice of the peace, and he appealed to the District Court, it was competent upon the trial there, in order to establish the identity of the offenses, to show by the testimony of the justice that the evidence offered upon the two trials was the same
    2. -: former conviction : fraud. Where, upon a defense based ■ on a former conviction, the State seeks to avoid its effect on the ground that the ju lgment was obtained through fraud, the burden is on the State to establish the fraud.
    
      Appeal from Cedar District Court.
    
    Monday, June 9.
    There was filed before a justice of the peace an information charging the defendant with the commission of an assault and battery.
    The defendant pleaded not guilty, and a former conviction for the same offense.
    Being convicted the defendant appealed to the District Court, where there was a trial on the same issues, the defendant was again convicted, and he appeals.
    
      Piatt d Carr, for ajipellant.
    
      J. F. McJunkin, Attorney General, for the State.
   Servers, J.

— The State introduced evidence tending to establish the crime charged and rested. Whereupon the defendant introduced as a witness R. Pritchard, who testified he was a justice of the peace, and pig docket was admitted in evidence. It tended to show a former conviction for the same offense. The information filed before the justice was also introduced, and tended •to prove the same thing. The defendant then asked Pritchard “whether the offense which is- charged in that information is the same one that has been testified to here to-day by these witnesses,” and also “whether or not the evidence was the same?” These questions were objected to because immaterial and incompetent. The objections were sustained. The object of the proposed evidence was to show the identity of the two offenses, and it should have been admitted. The Attorney General insists that the mere opinion of the witness was sought, and that what the witnesses testified to before the justice was immaterial, or, rather, incompetent. But we think if the witnesses were the same and they described a certain transaction, any one who heard them on both oeca•sions could properly state such fact. Such evidence would tend to prove the identity of the two offenses. It was not admissible for any other purpose. Properly speaking, it was not an opinion the witness was asked to communicate, but a fact that occurred in his presence.

II. The defendant introduced as a witness one Fritz, who gave evidence tending to show that he was present at the time the offense for which the defendant was then being tried was committed. He was asked to “state the facts as they ■occurred there at the bridge.” This question was objected to by the State as being immaterial, and the objection was .sustained. As the record is presented .to us we are at a loss to understand why the objection was either made or sustained.

'The defendant had pleaded not guilty, and such issue was 'then being tried. The evidence on the part of the State bore alone on that issue, and the defendant sought by the question to show the facts were not as the witnesses on the part of the State had testified. If admitted the innocence of the defendant might have been established.

The Attorney General suggests that it appeared in evidence that the defendant had procured the information to be filed before the justice, and that he had, therefore, substantially acknowledged his guilt. Therefore the error was not prejudicial. There is much force in this suggestion. But as the defendant did not, before the justice or in the then pending trial, plead guilty, we are of the opinion the question of his guilt was one to be determined by the jury. It was not for the court to say, as the issues were made up, that the defendant should not be allowed to make the attempt, however feeble it may have appeared to the court, to prove he was not guilty. The proposed evidence should have been admitted.

III. The theory of the State was that the conviction before Pritchard was procured by the defendant through fraud; therefore the State claimed the conviction was void and it was not concluded thereby. The defendant insists the third instruction given the jury cast upon him the burden of proving not only the former conviction but that also the trial was full and fair, and that the conviction was not obtained through fraud. If this be the meaning of the instruction it is without doubt, we think, erroneous. It devolved on the State to prove the fraud, and thus avoid .the force and effect of the conviction. There is some doubt as to the meaning of the instruction, and, as the cause must be reversed on other grounds, we deem it proper to say that on the retrial the defendant should have an instruction given the jury which casts the burden of proving the fraud on the State.

Reversed.  