
    Betsy Vaughan v. The Commonwealth.
    Criminal Law — Autrefois Acquit—Identity of Offence. —If a person be indicted for shooting- S. W. and acquitted thereof, and then indicted for shooting J. W. her plea of Auterfoits Acquit will not be supported, althoug-h the same act of shooting- is charg-ed in each Indictment; for, the jury who tried the first Indictment mig-ht have acquitted the prisoner on several grounds, which would not affect the second trial, as that the shot did not strike and wound S. W. or that she did not shoot S. W. with intent to maim, disfigure, disable or kill the said S. W.
    
    
      Same — Same—Verdict—Case at Bar. — If the prisoner, • to an Indictment for shooting J. W. plead that she . had been indicted and acquitted of the shooting of S.' W. .and that the shooting of which she is indicted is, the identical shooting of which she had before been acquitted, and no other, and the ver- ■ diet find “that she hath not before been acquitted of the same offence,” this finding is sufficiently • responsive to the issue on that plea, and there- ■ fore good.
    This, was an application for a Writ of Error to a judgment of the Superior Court of Peters-burg. The petitioner was indicted, in two Counts, for the unlawful shooting, and for the malicious shooting of Sally Wallcer, an infant daughter of Jenny Walker. She was acquitted of both charges. She was also indicted, in two' Counts, of the unlawful, and of the malicious shooting of Jenny Walker. To this Indictment she pleaded not guilty, and also another plea, purporting to be a plea of Auterfoits Acquit. It set forth that she had been indicted for the unlawful and malicious shooting of Sally Walker, the infant daughter of Jenny Walker; the Indictment was set out in hsec verba; that she had been tried and acquitted of the same ; it then Aaverred' that she was the identical Betsy Vaughan who had been so indicted and acquitted, and that the said shooting, in the Indictment aforesaid charged, and of which she was acquitted, was the identical shooting which in this Indictment is alleged to have been committed by her the said prisoner, and not other and different, &c., To this plea the Attorney for the Commonwealth replied generally. The jury found the prisoner guilty of malicious shooting, as in the Indictment against her is •alleged, and ascertained the term of her imprisonment in the Public Jail and Penitentiary-house to be two years, and “they find that she hath not been before acquitted of the same offence.”
    The prisoner moved the Court for a new trial, which being refused, a Bill of Exceptions was filed to the opinion of the Court, which set forth two grounds on which the new trial was asked. 1. That it was proved on the trial, that the prisoner, on the — day of August, 1821, discharged a gun loaded with powder and small shot, at Jenny Walker, a free woman of colour, with intent to disfigure the said Jenny Walker : that the prisoner, by the said discharge, did shoot the said Jenny, and' her child, Sally Walker : that the said prisoner had been indicted, tried, and acquitted of the charge of the unlawful and malicious shooting of the said Sally, which act of shooting said Sally Walker, was the same act of shooting as that charged in .the Indictment, on which the prisoner has been found guilty in this Cause : and that it was further proved by the record of the Examining Court, that the prisoner had been remanded for trial, on a charge of felony, in shooting Jenny Walker, and her child. 2. That the verdict in this Cause is uncertain and insufficient, because it does not state under what Count in the Indictment the prisoner was found guilty. The Court rendered judgment according to the verdict.
    The Counsel who applied for a Writ of Error, assigned, the following reasons for reversing the judgment: “ 1. Because the record of the Examining Court does not shew that she was examined for either unlawfully, or maliciously shooting, with the intents required by the Statute, and set forth in the •Indictment. 2. Because the verdict of the jury is uncertain, and insufficient in this ; 1. It does not find correctly on the issue made up by the second plea. It does not find that the shooting in this Cause was not the identical shooting charged in the first Indictment: 2. Although it finds that she has not before been acquitted of the same *offence, (which offence found in the verdict is that of malicious shooting,) yet it does not find that she has never been acquitted of the unlawful shooting, which is charged in one of the Counts of the Indictment. 3. Because the verdict of the jury was manifestly contrary to the evidence, as the record shews that Sally Walker, (of the charge of shooting whom, the prisoner was acquitted,) was shot by the same illegal discharge of the gun as the said Jenny Walker.”
    
      
      Criminal Law — Autrefois Acquit. — See on this ques-ton, monographic note on “Autrefois, Acquit and Convict” appended to Page v. Com., 26 Gratt. 943. The principal case is cited in Burress v. Com., 27 Gratt. 941; Com. v. Adcock, 8 Gratt. 692; State v. Hudkins, 35 W. Va. 250, 13 S. E. Rep. 368, to the point that the plea of not guilty and autrefois ’acquit may be tried at one and the same time by the same jury, and the verdict founded upon both issues. See also, Page’s Case, 27 Gratt. 954.
    
   Per Curiam.

The motion for a Writ of Error was overruled.  