
    CANTER against THE PEOPLE.
    
      Court of Appeals ;
    
    
      March Term, 1867.
    Acquittal.—Plea of Autrefois Acquit.— Variance, or Failure of Proof.
    To sustain the plea of a former acquittal as a defense to an indictment, it must appear that the party was "put in jeopardy ” by the former trial.
    A. plea of an acquittal, alleging that it was "on the ground of a variance between the indictment and the proof, the variance being that the proof failed to show ” certain facts necessary to establish the offense alleged, is not sufficient, under the provisions of the Revised Statutes, as a bar to a trial and conviction upon a subsequent indictment for the same offense.
    Writ of error to the supreme court..
    The writ was brought to review a judgment affirming a judgment of the general sessions, by which the plaintiff in error, Canter, was convicted of forgery.
    
      Upon the trial of the prisoner on an indictment for forgery, he interposed a plea stating that theretofore, in the year 1865, a grand jury had presented a, former indictment against him for the same offense, to which he pleaded “not guilty,” and upon his trial, a jury having been imjtanneled and heard the testimony and the charge, considered their verdict “and found said Canter not guilty, on the ground of a variance between the indictment and the proof, and so said they all, as by the record thereof it doth more fully appear ; which said judgment still remains in full force and effect, the said variance being that the proof failed to show that the said Canter had the said bank note in his possession with intent to utter and pass as a true bill and note; and the said Canter further saith, that the said Canter so indicted and acquitted as aforesaid, and he, the said Canter, who is charged in the present indictment, are one and the same person, and not other and different persons, and that the said offense of forgery in the said former indictment mentioned, and the said offense of forgery in the present indictment, are one and the same offense of forgery, and not divers and different offenses; and that the said bank note in the said former indictment mentioned, and the said bank note in the present indictment mentioned, were had and held by him, the said Canter, at the same time and place, and under the -same circumstances and with the same want of guilty knowledge and criminal intent to injure or defraud; and further, that both these said bank notes were in and constituted a part of the same package and parcel of bank notes, and -were found in his possession, and taken from Ms possession at the same time, on the same occasion, by the same person, and under the same circumstances, and were not held by him at any other or different time or place, nor under any other different circumstances, nor with any other different knowledge, and were not taken from his possession upon any other or different occasions, nor under other or different circumstances, nor by any other or different person, and this he is ready to verify.
    
      ‘ ‘ Wherefore, since he the said Canter, hath already been heretofore acquitted of the offense of forgery aforesaid, he prays judgment, and that by the court he may be dismissed and discharged from the said premises in the present indictment specified.”
    The plea was overruled, on a demurrer by the district-attorney, and the prisoner was tried upon the second indictment, found guilty, convicted and sentenced.
    The judgment was affirmed by the supreme court at general term, but no opinion of the court was delivered.
    
      S. H. Stuart, for the plaintiff in error.
    —The prisoner was arrested, and in his possession were found a number of counterfeit bank notes—all in one and the same package. He was indicted and tried for- having one of these notes in his possession, with intent to utter it as true, with intent to cheat—the others being given in evidence to show guilt. The prisoner was acquitted, upon the alleged ground of variance between the proof and indictment— the variance being that the proof failed to show that the prisoner had the note in possession, with intent to utter it as a true note, with intent to cheat. (See plea in bar.) The variance was that the proof failed to support the indictment—nothing more; which is true of every case of acquittal for want of proof. This acquittal, therefore, was not for variance, but was simple and absolute. After this unqualified acquittal, another note was taken from the same package found upon him at the same túne (see plea in bar), and made the subject of a second indictment, in which the prisoner was charged with having it in his possession, with intent to utter as false, with intent to cheat. On that indictment the prisoner interposed a plea of former acquittal, to which the people demurred. The court gave judgment against the prisoner, who was thereupon tried and convicted. A possession of all these bills at the same time and place, and with the same intent, was but one and the same act—and the prisoner could not be tried for as many felonies as there were bills found upon him ; and having been tried for a criminal possession of one, and fully acquitted (the alleged variance being in fact no variance), he could not be again tried for a criminal possession of any more of them, and for this reason the judgment ought to be reversed. See Van Keuren’s Case, 5 Park. Cr., 66, and the cases there cited.
    A. Oakey Hall, for the defendants in error.
    —I. Is not this the test: “If the prisoner could have been convicted on the first indictment by proof of the facts alleged in the second, then the acquittal would be a bar.” See Turner’s Case (Kel., 30); Jones & Bever’s Case (Kel., 52; and 1 Rus., 831); and in a later case the court illustrates the rule thus: “ So if a man steal twenty sheep from the same person at different times on the same day, or wound a .person at several times on the same day,” a conviction for one of such offenses would not bar an indictment for another of said offenses (Rex v. Barry, Carr. & P., 836), leaving the inference, irresistibly, that if the twenty sheep were all stolen, or the wounds were all inflicted at the same time, an acquittal on an indictment for one of the sheep, or one blow, would bar all the rest; and this was substantially held in Regina v. Martin (8 Ald. & Ell., 482). See 1 Chit. C. Law, 371.
    II. This principle is analogous to splitting demands in civil actions. If the prosecutor had brought an action for one of the bills found on the defendant, he could not subsequently have maintained an action for another of the bills, under the admissions of the demurrer (15 Johns., 432 ; 16 Id., 136 ; 15 Id., 229 ; 15 Wend., 557).
    
    III. Would not the accused have been convicted on the first trial by proof that he had the pacleage containing the bill set.out, in his possession, with intent to utter it as false % The greater includes the less, and the intent cannot be severed. If he had any intent, it applied to the whole package, for presumed intent must spring from the facts as they are proved. He coaid not be convicted on the first indictment without proving possession of the whole package as it was found, and the proof would be the same on the trial of the second indictment, differing only in the fact that each hill was counterfeit. This difference would occur in the case of the larceny of the twenty sheep, cited by Oh. J. Bulker, by way of illustration. If one of the sheep was black, and the other nineteen white, an acquittal on indictment for stealing the black sheep would bar a prosecution for stealing the white sheep at the same time and as one act, although the proof as to identity would necessarily vary. So, if A. should steal a box containing knives, forks and spoons, an acquittal on indictment for stealing the spoons would bar an indictment for stealing the knives and forks contained in the same box, although the proof would vary as to the articles. The reason is that there is but one act of stealing, and .that act embraces all the articles taken at the same time and in one parcel.
    IV. Again, an acquittal, if on the merits, embraces all the elements necessary to complete the offense. 1st, the possession; 2nd, the intent of the possession ; and 3rd, that the thing possessed was counterfeit, and these elements apply to the package as a whole. If each bill had been separately passed off by the defendant, then separate indictments would lie, for the offense would then be different, to wit, uttering the money, knowing it to be counterfeit. But here it is the possession which is charged to be felonious, and that was an entirety, and was tried on the first'indictment (People v. McGowan, 17 Wend., 386 ; People v. Ward, 15 Wend., 231).
    V. There is no force in the objection that the acquittal was in consequence of a variance between the indictment and proofs, as it is explained in the case. It amounted simply to a finding that the indictment was not proved, which is the case of every acquittal on the merits. If the prisoner could have been legally convicted on the first indictment upon any evidence that might have boea adduced, his acquittal on that indictment may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence was adduced at the trial of the first indictment or not (Rex v. Sheen, 2 Carr. & P., 635 ; People v. McGowan, 17 Wend., 386).
    
      VI. The true meaning of the verdict is, that the intent of the possession was not felonious ; not that he had not the possession, and the possession "being that of the package as a whole, the intent was entire, and the finding of the jury is conclusive as to all the parts of the package.
   Davies, Ch. J.

—The plaintiff in error was indicted in the New York general sessions in June, 1865, for that, willfully and feloniously on the 1st of February in that year, he had in his possession a certain forged and counterfeit note commonly called a bank note, issued by the Mechanics’ Bank of New Haven, in the State of Connecticut, of the denomination of ten dollars, with intent then and feloniously to utter and pass the same. Upon the arraignment of the prisoner, he interposed an autrefois acquit, which set forth an indictment found against him in the same words as the present indictment, for having in his possession a like false and counterfeit bank-note of the denomination of ten dollars, issued by the 1STorthfield Bank, of the State of Vermont, with like intent to pass the same; that upon said last-mentioned indictment the prisoner was arraigned and pleaded not guilty, and was put upon his trial, and that the jury then and there impannelled rendered their verdict that the said prisoner was not guilty, on the ground of a variance between the indictment and the proof. The plea then averred that the offense of forgery in the present indictment, and the said offense in the former indictment, are not diverse or different offenses, and the plea then proceeds to show wherein the offense charged in the former indictment was the same offense as that set forth in the present indictment, wherefore, as the prisoner had already been heretofore acquitted of the offense of forgery aforesaid, he prayed judgment that he be dismissed and discharged from the present indictment. The district-attorney then and there demurred to said plea, and the prisoner joined in the demurrer; and after hearing counsel thereon, the said plea was overruled by the court, and judgment was given thereon for the people, and thereupon the.prisoner was -arraigned upon said indictment, and pleaded not guilty and- demanded a trial.

He was subsequently convicted of forgery in the second degree, and sentenced to be imprisoned in the State prison at hard labor for the term of ten years.

The judgment of the general sessions was affirmed in tbe supreme court, and the prisoner now brings his writ of error to this court.

Assuming, as we may for the purpose of deciding this case, that the offense set forth in the first indictment, and upon which the prisoner was tried and acquitted, was the same offense as that charged in the second indictment, and upon which he has been tried and convicted, it by no means follows, as contended for by the counsel for the prisoner, that such verdict of acquittal forms a bar to the trial upon this indictment.

It is claimed by the plaintiff in error that his arraignment and trial upon this second indictment is an infraction of the 5th Article of the Amendment to the Constitution of the United States, which declares that “ no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” This provision is a fundamental maxim in criminal jurisprudence. It is derived from the ancient and well-established principles of the common law, was ratified by magna diaria, and is now firmly established by our national constitution. When this principle is invoked as a bar to further proceedings in a criminal prosecution, the inquiry always arises, has the party in fact-been already put in jeopardy for the same offense 1 To sustain the plea of a former acquittal, it must appear that the party was “put in jeopardy” by the former trial; thus, if the indictment upon which he'had already been tried was so defective that no judgment could have been given upon it, it would not at common law constitute a bar (People v. Barrett, 1 Johns., 66 ; 1 Russ. on Cr., 836; Burns v. People, 1 Park. Cr., 182).

Our Revised Statutes, however, provide that, “When a defendant shall have been acquitted of a criminal charge, upon trial, on the ground of a variance between the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same offense ” (2 Rev. Stat., 701, § 24). “ But where a defendant shall have been acquitted upon trial, on the merits and facts, and not upon any ground stated in the last section, he may plead such acquittal in bar of any subsequent accusation for the same offense, notwithstanding any defect in form or in substance, in the indictment upon which such acquittal was had” (Id., § 25). But such former acquittal will not be a bar, if the court had no jurisdiction to try the offense (1 Russ. on Cr., 836), or if the jury had been discharged without rendering a verdict (People v. Bowden, 9 Mass., 494; United States v. Perez, 9 Wheat., 579), or if there has been a failure of the trial for any other cause (12 Pick., 496). But the plea.in the present case presents the ground of acquittal on the former trial in the very words of section 24 above quoted, viz: on the ground of a variance between the indictment and the proof. We are, therefore, admonished by this clear and explicit declaration of the statute, that an acquittal upon such ground forms no bar to a trial and conviction upon a subsequent indictment for the same offense. This plain provision of the statute law of the State disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.

It is claimed by the prisoner that both indictments were in fact for the same offense. But we deem it unnecessary to pass upon this question.

' The judgment should be affirmed.

Concurring- on the main question: Weight, Pouter, ITuht, Scetjgham, and Grover.

The question of having several forged bills in possession, etc., not passed upon.

Judgment affirmed.  