
    CRIMINAL LAW — FORMER JEOPARDY — INDICTMENT.
    [Lucas (6th) Circuit Court,
    June 16, 1906.]
    Haynes, Parker and Wildman, JJ.
    Ed. Horner v. State of Ohio.
    1. Demurrer hot Necessary to Raise Question oe Sufficiency of Plea in Bar.
    Where one who has been indicted for a crime interposes a plea in bar to the indictment and a replication is filed thereto, the court may pass upon the sufficiency of the plea in bar. where the question is raised in such a state of the pleadings and a demurrer is not necessary.
    2. Plea of Former Jeopardy must set forth Former Indictment.
    A person indicted for an offense who pleads in bar that he has been before indicted, tried and acquitted for the same offense, must set forth in such plea the former indictment to enable the court to determine whether or not an offense was legally charged. The fact that Rev. Stat. 7258 (Lan. 11012) does not specifically provide for setting forth the indictment will not relieve the pleader of this necessity.
    8. Court will not Take Cognizance of Former Proceedings.
    Where a defendant has been tried before a jury upon an indictment and is again prosecuted upon a second indictment to which he pleads in bar the former indictment and trial, the court will not take judicial cognizance-of the proceedings under the former indictment in passing on the plea in bar to the second.
    4. Prosecution on Indictment for Larceny of Property of one Person not Former Jeopardy on Prosecution for Larceny of Property of Another.
    A person indicted and brought to trial for an offense alleged to be the stealing of the property of one “John W. E.,” may be recognized to appear before the next term of court and the jury discharged without prejudice to the prosecution under Rev. Stat. 7303 .(Lan. 11057), where-the evidence adduced shows that the property was in fact that of “Joseph W. E.” and not of “John W. E.” Such proceedings will not constitute an acquittal which will render a plea of former jeopardy good as against a subsequent indictment for stealing “Joseph W. E.’s” property.
    5. Under Rev. Stat. 7258 (Lan. 11012), Court may Pass on Sufficiency of Plea of Former Jeopardy and Need not Submit Issues to Jury.
    Where a plea in bar has been interposed to an indictment setting up a former acquittal of the same offense and a replication filed thereto has raised issues as to the record of the former trial, etc., the court may pass upon the sufficiency of and overrule the plea in bar, and it is not the court’s duty to submit the issues arising under the pleadings tO' the jury under Rev. Stat. 7258 (Lan. 11012).
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    J. P. Crawford, for plaintiff in error:
    The trial court had no right to follow Rev. Stat. 7303 (Lan. 11057)-as the section applies to cases where a mistake has been made in charging-the proper offense in the indictment. In the case at bar the offense was. grand larceny and was so charged in both indictments. There is a dis-tinetion between charging the proper offense, an'd charging the offense properly.
    The trial court should have followed Rev. Stat. 7216 (Lan. 10970).
    The Supreme Court of Ohio has held in Mulrooney v. State, 26 Ohio St. 326 and State v. Buechler, 57 Ohio St. 95 [48 N. B. Rep. 507], that the name of the owner of the property described in an indictment, is a description of a “matter or thing therein named or described” and therefore (Rev. Stat. 7216; Lan. 10970) clearly applies.
    The record does not show that the trial court found that the variance was “material to the merits of the case or prejudicial to the defendant.”
    The trial should have proceeded, and the issues submitted to the jury upon the evidence, and there could have been a legal acquittal or conviction. Mead v. State, 26 Ohio S.t. 505.
    Identity is a fact to be determined by the jury. It is for the jury to say whether the person intended to be described in the indictment and the person described in the proof are one and the same person. In other words whether the variance is a mere mistake in name or is a mistake as to the person. Mead v. State, 26' Ohio St. 505.
    The court of its own motion and'without the consent of defendant discharged the jury during the progress of the trial. This operated as an acquittal. Mitchell v. State, 42 Ohio St. 383; Hurley v. State, 6 Ohio 399; Mount v. State, 14 Ohio 295; Poage v. State, 3 Ohio St. 229; Baker v. State, 12 Ohio St. 214; Dobbins v. State,. 14 Ohio St. 493; Steiuart v. State, 15 Ohio St. 155; Hines v. State, 24 Ohio St. 134. 1 Bishop, Cr. Law Secs. 1015, 1016.
    L. W. Wachenheimer, prosecuting attorney, for defendant in error.
   WILDMAN, J.

In this ease plaintiff in error was indicted, tried and convicted upon a charge of stealing money from one Joseph W. Emery. The indictment asserted the sum of' money stolen to be $128 and the jury by its verdict found him guilty of stealing the sum of $100. The only claim of error is involved in the assertion of a former acquittal under a plea in bar by the defendant below and the action of the court thereon. The defendant filed the following plea in bar:

“The said Ed Horner in his own proper person comes into court, and, having heard the said indictment read, says that the said state of Ohio ought not further to prosecute the said indictment against him, the said Ed Horner, because, he says, that heretofore, to wit, at a term of the court of common pleas in and for the county of Lucas in the state of Ohio, of the January term of 1906,” (which I should say was a term prior to the one in which the indictment upon which he was tried and convicted was found) “the grand jurors of said county, duly impaneled and sworn, presented their indictment against him for the same offense as is charged in the present indictmentthat said defendant was duly arraigned in said court on said indictment and pleaded not guilty thereto. That in the April, 1906, term of court, said cause was set for trial and thereupon a jury was duly impaneled and sworn in said cause in said court, and the state adduced all its evidence against said defendant and rested its case. And the court thereupon, of its own motion and without the consent of the defendant, and without finding a sufficient reason therefor, discharged said jury and remanded said defendant to jail. The larceny set forth in said indictment is the same larceny as that set forth in the present indictment and the offense in the former indictment is the same identical defense as that set forth in the present indictment. Defendant has therefore been acquitted of said change. The said defendant therefore prqys> that he may be dismissed and discharged from the premises in the present indictment specified.”

To this plea the state replied, saying, “that there is no record of any acquittal of the said defendant for the offense charged in the indictment herein.” There follows a general denial of each and every allegation of the defendant’s plea.

In our code of criminal procedure the statute as to pleas in bar is embodied in Rev. Stat. 7258 (Lan. 11012), which reads:

“The accused may then offer a plea in bar,to the indictment, that he has before had judgment of acquittal, or has 'been convicted or pardoned, for the same offense; to this plea the prosecuting attorney may reply that there is no record of such acquittal or conviction, or that there has been no pardon; the issue thus made shall b.e tried to a jury, and on such trial the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record, or mentioned in the pardon; and he shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.”

The plea in bar and the replication having been filed, a hearing was had, as stated in the journal of the court:

‘ ‘ This cause came on for hearing upon the plea in bar of the defendant, Ed Horner, to the indictment herein and the replication of the prosecuting attorney thereto, and was argued by counsel and submitted to the court. And upon consideration thereof, the court doth find the said plea to be insufficient and the allegations thereof not shown to be true and doth overrule the same, to which action of the -court the defendant by his counsel then and there excepted. And “thereupon the said defendant, being present in court with his attorney, waived the reading of the indictment against him and pleaded not guilty to the said indictment. Thereupon a jury was impaneled and ¡sworn, a stenographer was ordered to report the evidence herein at the request of both sides and the trial began. ’ ’

•And the entry further recites the fact of the trial and the rendition of a verdict.

At first blush it might appear that the issue presented by the plea in bar’ was one solely for the jury and that no statutory power was given to the court to pass upon the sufficiency of the plea. But, while no provision is found in the criminal code for either demurrer to the plea or any other method of obtaining the judgment of the court upon its sufficiency, it is distinctly held in the case of Hurley v. State, 6 Ohio 399, that a court did not err in sustaining a demurrer to a special plea in bar in a criminal case, where the court deemed the plea insufficient and where it was in fact so. And in the case of Gormley v. State, 37 Ohio St. 120, it was held:

“A plea of former conviction which is insufficient in matter of substance, does not raise an issue for. a jury, but may be adjudged insufficient on demurrer.”

It is the policy of the law to take cognizance of defects in an indictment whether a demurrer is filed thereto or not, if those defects are such as to render the indictment insufficient, as not charging a crime. Of course as to mere matters of indefiniteness, where the statute provides that by failing to file certain motions a defendant shall be deemed to have waived his rights, the court could not on the trial of the ease stop the introduction of evidence or instruct the jury to find a verdict for the defendant because of such defective indictment. It is analogous to the conditions that arise under the code of civil procedure. Questions as to jurisdiction of the subject-matter, and the sufficiency of the facts to constitute a cause of action, may be raised at any stage of the trial, or even in arrest of judgment; whereas matters of mere form cannot so be presented, but they must be called to the attention of the court in due season. If this plea in bar was insufficient, and if the court ■could so have adjudged it on demurrer, we have no doubt that the court would be equally justified if the questions were submitted to the court as to the sufficiency of the pleadings, in determining it without n demurrer; that is, in examining it to ascertain whether there was any proper issue to go to the jury.

Examining this plea in bar, we-find that it alleges that the defendant bad been put upon trial at a former action upon an accusation of the same .offense. But it is not alleged that the charge was made in proper terms of law so that a conviction could have been had. The plea says that an indictment was found; it does not say that it was a valid, indictment — that it was sufficient in its terms as charging an offense properly, nor does it embody the'indictment in the plea so as to apprise-the court of its terms. The plea further says that the court discharged the jury without sufficient cause, but what the cause was is not stated. Now, to hold that it was the duty of the court to send such issues as these to - a jury, would be to require the court to instruct the jury to-pass upon the sufficiency of the court’s action and upon the validity of the former indictment. As to the identifying of the offense a question of fact might be presented; but the sufficiency of the indictment, or its insufficiency, would be a question of law, to be determined by the court, and the sufficiency or insufficiency of the court’s reason for discharging the jury, after it had been impaneled and sworn, would be a question of law to be addressed to the court rather than to the jury. Now, in order that the court might be apprised of the exact condition of the former record, the plea in bar should be so explicit that the court could pass upon the matter. Possibly in this case everything was shown to the court to enable the court to do it when the plea in bar and the reply thereto were submitted to the court for its action; there is no bill of exceptions to show what was shown to the court. There is nothing to show of what the court took cognizance in passing upon the sufficiency of the plea. The court either had the former record or the court did not have it at the time when the court adjudged the plea in bar to be insufficient. Assuming for a moment that it was not produced — as it does not appear in the plea — we must examine some of the authorities to determine whether it was requisite that it should be shown to the court.

In the case of Foster v. State, 39 Ala. 229, it was held:

“In a plea of I former conviction or acquittal, it is necessary to set out the record, or at least the indictment. ’ ’

In the case of Smith v. State, 52 Ala. 407, it was held:

“A plea of former acquittal interposed as to one offense, based on. an acquittal on a trial for another -charge, must set forth, among other things, the indictment on which such trial was had.”

In the ease of Evans v. State, 54 Ark. 227 [15 S. W. Rep. 360], the court held:

“A, plea of former conviction is insufficient which does not verify the alleged conviction by the record, nor allege that it was for the same offense the second prosecution was intended to punish.”

The plea here does allege that it .was for ¡the same offense, but it does not verify the statement by any production of the record.

In the case of Washington v. State, 35 Tex. Crim. App. 156 [32 S. W. Rep. 694], it appears that:

“Appellant was convicted of assault with' intent to murder, and given two years’ confinement in the penitentiary, from which conviction he prosecutes this appeal. It appears from the record that appellant shot one Edwards, missed him, and killed one Black. Appellant was tried and convicted of the murder of Black. He was then placed .■on trial under this indictment for an assault with intent to.kill and murder Edwards. He attempted to plead in bar of this prosecution the judgment of conviction for the murder of Black. If the plea had been in proper form, containing what the law requires, it would have been a good plea in bar to the prosecution for this assault to murder, because everything that was done by the defendant, all of the unlawful intents and purposes which went to make up a case of'assault to murder, were utilized in the murder case. The state excepted to the sufficiency of the plea, and the court sustained the exception. It is well settled that a plea of former conviction or acquittal must contain the indictment, the verdict of the jury, and the judgment of the court. This record does not contain the indictment, nor the conviction and judgment, and there was no error in sustaining the demurrer to the plea.”

And the court add, a little lower:

“This record, as above stated, does not contain in any part thereof the indictment nor the judgment in the murder case, and we cannot determine from this record whether the conviction was had upon a valid indictment, or whether judgment was ever rendered upon that conviction. ’ ’

In further support of this position reference should be made to the citation of counsel for the state: 1 Bishop, New Crim. Proced. Secs. 809, 810, Subd. 2, p. 474; and also Bishop, Dir. & Forms Sec. 1043, p. 593. “How is a record fact to be alleged?” Sec. 93, p. 43.

It is said by counsel that Laning’s Form Book has a form of plea in bar like the one in the present case. We have not had access to that. It is proper to note that these forms should be taken in both of these works for just what they are worth, as the opinions of compilers or bookmakers; but after all, they must be. based upon correct principles and be properly supported by authority, to justify their use a.s authority to the court.

Our judgment is, that this plea in bar- should have contained the indictment; but whether it should have contained also a copy of the journal, to show the action of the court, upon the former trial in discharging the jury from further consideration of the case; whether that journal would have disclosed a sufficient reason therefor, it is unnecessary for us at present to consider. It is enough to say that the plea, in bar should have set forth the indictment upon which the former partial trial was had.

There is a case in Massachusetts: Commonwealth v. Bosworth, 113 Mass. 200 [18 Am. Rep. 467], which, at first glance, would seem to run counter to the decisions to which I have made reference. The holding, as disclosed by the syllabus, is:

“When an inferior court has jurisdiction of an offense upon prop-, erty, if the value of the property does not exceed a specified sum, a. plea of a former acquittal of such offense in the inferior court is a good bar to an indictment for it in a superior court, although the value of the property is alleged in the indictment to be a sum exceeding the jurisdiction of the inferior court.”

It seems, from an examination of the case, that the indictment or the complaint was not embodied in the plea in bar in the second case; but a further examination and more critical one, shows also that a plea in bar, in Massachusetts, without containing the indictment, is sufficient by reason of the statutory form of the plea in bar in that state provided. Judge Gray says, p. 468:

“The defendant’s plea in bar of a former acquittal before the municipal court of Taunton, of the same offense for which he now stands indicted in the superior court, is in the form prescribed by Stat. 1864, e. 250, Sec. 4, and is therefore sufficient in form, without more fully setting out the record of that acquittal, or the facts relied on to prove the identity of the former offense with that now charged against him. ’ *

It might be urged with an apparent slight show of authority, that the court should take judicial cognizance upon the latter trial of what previously took place under an accusation of the same character and which the plea in fact has alleged to be for the same offense although upon an indictment rendered at a former term. There is a case in Texas, Foster v. State, 25 Tex. App. 543 [8 S. W. Rep. 664], in which it was held:

“Although a plea of former jeopardy and former conviction omits to set out the indictment and judgment referred to, and would therefore be fatally defective if both trials had been in different courts, such defect will not bar the defense of jeopardy and former conviction when both trials were in the same court, since the court takes judicial cognizance of previous proceedings in the case. ’ ’

An examination, however, of the case cited 'shows that the two trials were both upon the same indictment, so that the record of all the legal proceedings with reference to the indictment would apprise the court fully of all that had taken place upon the first trial. I will not stop to read from the case any further than I have done.

We think that where a defendant has been tried before one jury, upon one indictment, is again indicted, and is tried upon the second indictment, it cannot be said to be the same case; nor can the court in the second prosecution take judicial cognizance of the proceedings in the first.

It is claimed that the statute of Ohio relieves the defendant from inserting in his plea in bar the indictment, or any portion of the record under which the former conviction or acquittal occurred. The statute, Rev. Stat. 7258 (Lan. 11012), says:

“The accused may then offer a plea in bar to the indictment, that he has before had judgment of acquittal, or has been convicted, or pardoned, for the same offense.”

But we are not of opinion that in the use of this general phraseology the legislature contemplated the omission of the ordinary requirements of a plea in bar. It was simply placing in the statute a provision as to a plea already recognized in criminal law, merely providing that one accused may properly set up a former acquittal, or a former conviction, in bar of a prosecution for the same offense. There is no attempt apparent in the section to define what shall be the proper form of such plea. We have found in Gormley v. State, 37 Ohio St. 120, and Hurley v. State, 6 Ohio 399, the two eases to which I have made reference, that it was the duty of the court to pass upon the legal sufficiency of the plea in bar. The court in this case did so and announced its decision, and thereupon, it is said, overruled the plea. The defendant then entered a plea of not guilty, and, the jury being impaneled, the case proceeded to trial and a conviction was had as heretofore stated.

Now, if counsel are correct in their contention that this plea in bar and the reply thereto presented an issue for a jury, and that it was the duty of the court to send the whole matter to the jury to determine the issues of law as well as the issues of fact, a question might still be urged as to whether some further duty did not devolve upon the defendant in order to preserve his rights under the plea. In Rev. Stat. 7258 (Lan. 11012), to which I have already referred, in the latter part of the s'ection, it is provided:

‘ ‘ The issue thus made shall be tried to a jury, and on such trial the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record, or mentioned in the pardon; and he shall be permitted to adduce such other evidence as may be necessary to establish the identity of' the offense.”

We have here no bill of exceptions showing what evidence was offered to that jury which was impaneled and sworn. There is no statement in the record that the jury was impaneled and sworn simply to try the defendant upon the issue as to whether he was or was not guilty as-charged in the indictment, and our judgment is, that even if it was the duty of the court — which we do not find — to send any matter concerning the former trial to the jury for its consideration, after the court had considered the plea to be insufficient, under those circumstances we think that in order further to preserve his rights the defendant should have followed the requirements of this section of the statute and produced the record of the former claimed acquittal and should have offered proof that he was the same person charged in the record; and then he might have introduced such other evidence as would have been proper in order to establish the identity of the offense, all this being denied by the reply.

It is said in the petition in error that,

“Said court erred in not submitting the issues joined on said plea in bar and replication of defendant in error to a jury.”

We find no request that the court should do so, and no exception to the court’s not doing it. Presumably, if it was a proper issue to go to the jury, the court, if the request had been made, would have granted the request and have submitted the issue to a jury. All the presumptions are in favor of the correctness of the rulings of the court below, and in the absence of any showing of what was done by counsel or by the court, further than is disclosed by the journal entry before us, we are unable to say that the court did not have sufficient ground for the action which was taken in holding, in the first place, that the plea was insufficient and, in the second place, in submitting the case generally to a jury for its consideration. No instruction was requested, from the court that the jury should find, first, as to whether or not the claims made in the plea in bar were true. There is nothing expressed in this statute that the same jury may not try both issues— it may or it may not. It is not necessary in our view of the case to enter upon an inquiry as to the legal scope of the jury’s duty. But, as I have already said, there is nothing in the record or the statute to show that this jury was charged with the sole duty of determining the guilt or innocence of the defendant. <

We might go still further and examine the record which has been handed up and consider the statements of counsel upon both sides as to what took place upon the former trial. We do not think that the record of the former trial has any proper place here, but the plaintiff in error has seen fit to submit it for our consideration and under those circumstances we have examined it. We have listened to the statements of counsel, that the first indictment charged the stealing of money of one John W. Emery instead of that of Joseph W. Emery, as in the second indictment. The written record does not fully apprise us as to whether it was a mere mistake in the name of a person who was really sought to be described as the owner of the money stolen, or whether it was a mistake in charging the wrong person as the^owner, but we are informed by counsel that there were in fact two men— •one named John W., and-the other Joseph W., and that in the first .indictment the charge was really of stealing the property of John, while in the second indictment it was for the stealing of the property ■of another man, Joseph. Now, if all that be so, we think that an ■acquittal or conviction for the stealing of the property of one would not be a bar to a subsequent prosecution for the stealing of the property of the other. It would require different proof; it would require different evidence as to ownership; and, having these views, we think that the judge upon the first trial was justified in taking the action which he did -when it was discovered that the ownership was not in the person who had been named in the indictment as the owner. We think that a proper ease arose for the application of Eev. Stat. 7303 (Lan. 11057).

“If it appear at any time before verdict that a mistake has been made in charging the proper offense in the indictment, the jury may be discharged, without prejudice to the.prosecution, and the accused, if there is good cause to detain him, may be recognized to appear at the next term of the court, or, in default thereof, committed to jail; and in :such ease the court may recognize the witnesses for the state to appear ;at the same time and testify.”

The case of Mitchell v. State, 42 Ohio St. 383, we think does not ¿apply to this case, because there a conviction of the offense of an assault could have been shown by evidence adduced on either trial or under either indictment. It was not so here. The finding of a person guilty under one indictment would not be equivalent to finding him guilty under the other, unless the variance was a mere immaterial one — one not tending to the prejudice of the defendant — a variance as to names but not as to persons. The court on the former trial found that it did tend to prejudice the defendant. The defendant was urging the mistake in the indictment as a ground for his discharge, and the court would not have been justified in discharging the jury on the former trial if it were an immaterial variance and one that did not tend to his prejudice. The court must have found that it was a material variance, and, so finding, deemed it a case for the application of this-statute. There was an attempt to charge a proper offense but there-was a mistake in charging it, because it was charged to be committed against another person than the real owner of the money. Ownership was a material fact in the indictment. Under such circumstances the statute should be applied in order to prevent a failure of justice. If the contention of counsel is correct, that the jury, instead of being discharged should have been instructed to acquit, then on the assertion of such a mistake as this, there would be no possibility of convicting a man for a proper offense. We think, in view of all the circumstances of the case and 'all the considerations urged by counsel in argument, that it cannot justly be said that this defendant has been twice placed in jeopardy for the same offense.

Having fully considered the questions presented and naturally arising in the case, our conclusion is, that the judgment of the court below should be, and it therefore is, affirmed.

Haynes and Parker, JJ„ concur.  