
    
      The State vs. John S. Risher.
    
    Defendant had been indicted for stealing the cow of J. G. and acquitted. He was again indicted for stealing the same cow, at the same time and place, and of the same owner, but by the name of J. G. A. which was his proper name. Held, that the acquittal was no bar to the second indictment.
    The plea of autrefois acquit, under such circumstances, to be good, must aver that the owner of the goods was the same person, notwithstanding the variance in the surname, and that he was as well known by the one name as by the other ; and this averment must be proved at the trial.
    
      Before Richardson, J. at Colleton’, Spring Term, 1844.
    This was an indictment for cow-stealing. The defendant had been indicted for stealing the cow of John Gruber, and found “not guilty,” at the former term. He was now in-dieted for stealing the same cow, at the same time and place, and of the same individual, but by the name of John Gruber Akerman, which was his proper name. The former indictment misnamed him, “John Gruber,” and the mistake of his proper name was accounted for. The identity of the theft was unquestioned, and the guilt of the defendant obvious. But he pleaded his former acquittal in bar of the second prosecution.
    The presiding judge charged the jury, that although the acquittal of any one for' stealing the cow of A, could be no discharge of a prosecution for stealing the cow of B, for there, the felony charged was not one and the same, being committed on a different person, B, instead of A— yet when, as in this case, A and B, or John Gruber and John Gruber Akerman, were clearly the same person, the felony was then identical in every respect, and the former acquittal — the verdict being general, “ not guilty” — was a legal bar to the second prosecution.
    That however guilty the defendant was in truth, we could not now look into the error of the former acquittal, which was probably caused by the misnomer. It was the same theft., of the same person, of the same thing, time and place, of which the defendant had been acquitted, and he could not be again charged with the same crime, after such a verdict. Varying or correcting the name of the owner of the stolen cow, could not alter the fact, that the defendant had been acquitted of the same crime against the same person. And the court was obliged to allow him the legal advantage he had obtained by the former verdict. The jury, however, found the defendant guilty, and he appealed, on the grounds—
    1. Because on the plea autrefois acquit, and the evidence, the defendant ought to have been acquitted.
    
      2. Because the verdict of the jury was contrary to law, evidence and the charge of the presiding judge, on the plea of former acquittal for the same offence.
    
      E. DeTreville, for the motion.
    It is unnecessary to refer to authority to shew that one cannot be indicted twice for the same oifence. All then that we are required to establish is, that the offence charged in the second indictment is the same as that charged in the first, and that the defendant could, by some possible evidence, have been convicted on the first trial. 12 Eng. C. L. Rep. 299. That the offence was the same is unquestioned, and the only question is, could the defendant have been convicted on the first indictment ? If the State had proved that John Gru-ber Akerman was as well known by the name of John Gruber, he could have been convicted. .And is it not possible that such proof could have been made ? At any rate, does not the onus of proving that he was not as well known by the one name as by the other, lie upon the State 1 He cited 1 Ch. Or. L. 454; 2 Rus. 169, 707, 704; 5 Eng. C. L. Rep. 384; 24 lb. 473 ; 9 East Rep. 437.
    
      Bailey, Attorney General, contra,
    cited Arch. Cr. PI. 11 — 51, and said, if the evidence in the second case could have sustained the indictment in the first, then the defendant should have been acquitted. But it is clear that it could not. Evidence which . proves a felony in stealing the cow of John Gruber Akerman, could not sustain an indictment for stealing the cow of John Gruber; prima facie, they were different persons, and if the defendant expected to avail himself of the acquittal on the first trial, he should have alleged and proved that they were different names for the same person, and that he was as well known by the one name as the other.
   Curia, per

Frost, J.

On an indictment for cow-stealing, as for larceny, where the owner of the property is known, the property must be expressly laid to be in him, and so proved. If he be misnamed, or if it appear that the owner is another person from him named as such in the indictment, the variance will be fatal, and the defendant must be acquitted. The name of the owner, then, is a material part of the statement of the offence. The first indictment, alleging the cow to be the property of John Gruber, does not state the same offence as that charged in the second indictment, alleging the cow- to be the property of John Gruber Akerman. On the trial of the first, if it were not proved that the cow was the property of John Gruber, the defendant would be acquitted; as he would be on the second, if the cow was not proved to be the property of John Gruber Akerman. The only way in which it can be shewn that the offences are the same, is-by proving that John Gruber and John Gruber Akerman are the same person. This can only be in case the same person is commonly as well known by one name as by the other. Accordingly, in Hale’s P. C. it is laid down, “if a man be indicted for the robbery or murder of John Styles, and acquitted, and after, is indicted of the robbery or murder of John Nokes, yet he may plead autrefois acquit, and aver it to be the same person, notwithstanding the variance in the sirname, and that he was as well known by one name as by the other — for a man may have several sir-names.”

Another test by which to try the question whether the plea of autrefois acquit is sufficient in any particular case is, “whether the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the firstArchbold C. P. On the other indictment, it was necessary to prove the cow to be the property of John Gruber Akerman. On that proof, the defendant would be, and in fact was, acquitted on the first, which shews that the same offence was not charged in the first indictment which ' is charged in the second. But if John Gruber Akerman is commonly as well known by the name of John Gruber, proof of that fact would support either indictment, and defendant’s plea would be good. That fact, however, was not proved, and the motion for a new trial must be refused.

O’Neall, Evans, Butler and Wardlaw, JJ. concurred.

Richardson, J. dissented.  