
    Samuel Price v. The State.
    In a criminal proceeding, it is not necessary to insert the middle letter in a person’s name ; but if inserted, it must be proved as laid.
    On a plea of duteafois acquit, the true test to determine whether the accused has been put in jeopardy for the same offense, is whether the facts alleged in the .second indictment, if proven to be true, would have warranted a conviction on the first indictment.
    This is a writ of error to the Court of Common Pleas of Hocking county.
    The plaintiff in error was indicted for burglary and larceny, in breaking and entering the mill of Horace B. Westerhaven, and stealing the goods of said Horace B. Westerhaven.
    The defendant plead a former acquittal. The record • set forth in the plea, shows a trial and acquittal of a charge of burglary, in the mill of Horace E. Westerhaven, and a larceny of the goods of said Horace E. Westerhaven. The plea also avers that the said Samuel Price, indicted and acquitted, is the same Samuel Price charged in the indictment to which the plea is interposed; that said Horace B. Westerhaven, in whose house the burglary in the last indictment is alleged to have been committed, is the same person who, in the other and first indictment, was named Horace E. Westerhaven, and that the burglary and larceny charged in the first indictment is the same burglary and larceny charged in the second.
    To this plea the counsel for the state demurred. The demurrer was sustained, and the defendant required to plead over, and on trial was found guilty and sentenced to the penitentiary.
    It is alleged that the court erred in sustaining the demurrer to the plea.
    
      Brazee & Tallmadge, for plaintiff in error.
    
      Henry Stanbery (attorney general), for defendant.
   Caldwell, J.

The question to be decided is, whether the record plead, and the averments of the plea, show that the defendant had been once put in jeopardy for the same offense.

A person can only be said to have been in jeopardy for an offense, when he has been put on his trial, on an indictment which would have warranted a conviction, if the criminal act had been proved.

In Archbold’s Criminal Pleading, page 87, the rule is laid down thus: “ When a man is indicted for an offense and acquitted, he cannot afterward be convicted for the same offense, provided the first indictment were such that he could have been lawfully convicted on it; and if he be thus indicted a second time, he may plead auterfois acquit, and it will be a good bar to the indictment.”

The true test by which the question, whether such a plea is a sufficient bar in any particular case, may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to prove a legal conviction in the first.”

The same rule is laid down in Roscoe’s Criminal Evidence, page 331. The first question arising in the application of this principle to the case in hand, is, whether the name Horace B. Westerhaven and Horace E. Westerhaven is the same name, or whether they designate different persons. It is not necessary in giving a person’s name to insert a middle letter which may form a part of his name, but when inserted it becomes an important part of the name, and must be proved as laid. Horace B. Westerhaven and Horace E. Westerhaven are different names, designating different persons. The facts necessary to sustain the second indictment could not have warranted a legal conviction on the first. Take the facts alleged in the second indictment to he true, and they could not have-put the defendant in jeopardy of a legal conviction in the first. In order to have made the plea good, it would have been necessary, in addition to the allegations made, to have averred that Westerhaven was known as well by the name of Horace-E, Westerhaven as Horace B. Westerhaven. We think the court decided correctly in sustaining the demurrer.

Judgment affirmed.  