
    STATE v. JAMES WHITE.
    (Filed 26 February, 1908).
    1. Burden of Proof — -Defenses — “Former Acquittal” — Identical Offense.
    The burden of proof is upon the defendant, under plea of former acquittal, to show that he had been formerly acquitted for the identical offense, in law and in fact.
    2. Power of Court — “Former Acquittal” — Collateral inquiry.
    The plea of. former acquittal is a collateral civil inquiry as to the former action of the court, and the verdict on such an issue may be set aside in the discretion of the court.
    3. Witnesses — Indictment—“Former Acquittal” — Civil Action — Criminal Action.
    The defendant, under plea of former acquittal of the offense charged in the bill of indictment, may become a witness in his own behalf, and may not be forced upon the stand as a witness in relation to the criminal charge.
    4. Witnesses — “Former Acquittal” — Evidence—Proof.
    The indictment and judgment in a former action, introduced in evidence under plea of former acquittal, are sufficient to show the nature of the offense charged therein, but the defendant must prove that the two charges are for the same offense.
    5. Indictment — Date of Offense — Immaterial Charge — Evidence.
    The date of the offense charged in the bill of indictment is immaterial, and is no evidence, upon a trial under a separate indictment, that defendant had been acquitted for the same offense.
    OhimiNal action, tried before W. R. Allen, and a jury, at February Term, 1908, of tlie Superior Court of Chaven County.
    Judgment of guilty, and defendant appealed.
    The facts sufficiently appear in the opinion of the Court.
    
      Assistant Attorney-General for the Státe.
    
      Summons, Ward & Allen and R. A. Nunn for defendant.
   Clare, O. J.

The defendant was acquitted of carrying a concealed weapon, the offense being charged in the bill as com-mittecl on 24 December, 1901. At tbe same term be was indicted for carrying a concealed weapon on 5 January, 1907. To tbis indictment tbe defendant pleaded tbe acquittal in tbe first-named case as a bar, and also not guilty. Tbe evidence was tbat tbe second offense occurred on 5 January, 1908, and was a distinct occurrence, and, indeed, at a different place from tbat for ivhich tbe defendant was acquitted in tbe first indictment, wliieb bad occurred, according to tbe State’s evidence offered in tbe trial of tbat case, on 24 December, 1907.

His Plonor properly refused to instruct tbe jury, “if tbey believed tbe evidence, tbat tbe defendant bad been heretofore acquitted of tbis offense.”

In State v. Hankins, 136 N. C., 623, Walker, Jfully and clearly discusses tbe whole subject, and says tbat, to support a plea of former acquittal, both prosecutions “must be for tbe same offense, both in law and in fact,” citing State v. Jesse, 20 N. C., 98; State v. Nash, 86 N. C., 656; State v. Williams, 94 N. C., 891. To same purport, Connor, J., in State v. Taylor, 133 N. C., 759.

It is true tbat tbe date charged in tbe bill is immaterial. Revisal, sec. 3255. Tbe two indictments did not charge tbe offense on the same day. Tbe defendant, on whom rests tbe burden of tbis plea, cannot be either prejudiced or protected by tbe allegation of the date in tbe bill. He must show tbat, in fact,- tbe evidence which bad been offered to prove tbe first offense indicated tbe same offense, i. e., tbe same transaction, therefore occurring at same time and place as tbat put in evidence on tbis trial.

Tbe defendant’s counsel contends, and correctly, tbat a defendant may be tried, regardless of tbe date charged in tbe bill, for the offense described therein, upon proof of any commission of tbat offense at any time prior thereto, not barred by tbe statute of limitations; and it is also true, as contended, tbat be cannot be tried more than once for tbe same offense. But tbis does not mean that one convicted of carrying concealed weapons, or of larceny, or of any other crime, is immune thenceforth as to any other charge of the same nature, if the crime was committed prior to return of that indictment. The burden is on the defendant to plead and to prove that the former conviction or acquittal was for the identical offense. This plea is not of a criminal nature, touching defendant’s conduct, but is a collateral civil inquiry as to the former action of the court, and, therefore, the verdict on such issue, whether in favor of or against the defendant, may be set aside by the Judge in his discretion, or if against the weight of the-evidence. State v. Ellsworth, 131 N. C., 774; 92 Am. St., 190. The production of the indictment and judgment in the former action is sufficient to show the nature of the offense charged therein (but not the date or place, which are immaterial under our statute), and the defendant must by parol show that the two charges are fox the same transaction. This can never be difficult to do. Indeed, the defendant is a competent witness, and his going on the stand in this civil issue will not compel him to go on the stand in the criminal issue. The .two issues can be tried separately. State v. Winchester, 113 N. C., 641; State v. Ellsworth, supra.

If this were not so, no one could be indicted and tried for carrying concealed weapons more than once in two years, though he should violate the law in..that respect every day of that period; or, if acquitted on one single charge of retailing without license, the defendant would be law proof for the period of two years prior to finding a bill as to all other charges of that nature. The same would be true as to other offenses.

No Error.  