
    Hite vs. The State.
    To entitle the prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crime charged in the last bill of indictment, be precisely the same with that charged in the first, and also that the first indictment be good in point of law.
    The true test to ascertain whether a plea of autre fois acquit, is a good bar, is, whether the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the 11j st.
    If the crimes charged in the first and second indictment, are so distinct, that evidence of the one will not support the other, it is inconsistent with reason and law, to say that they are so far the same, that an acquittal of the one will be a bar to the prosecution of the other.
    The first indictment in this case charged the prisoner with having stolen, taken and carried away one bank note of the Planters’ Rank of Tennessee, payable on demand if the Merchants1 aui Traders’ Bank of New Orleans. Upon this he was acquitted’ The second indictment, charged him with having stolen, taken and carried away one bank no e of the Planters’ Bank of Tennessee, payable on demand* at the Mechamos5 find Traders’Bank of New Orleans. The former acquittal was pleaded in bar. Held: that it was not a good bar to the prosecution of the second indictment.
    The place of payment in ja, bank note, charged to have been stolen, need not be stated as descriptive of the note in the indictment; but if it is stated, it then becomes material as dcseriptive of tbe offence charged, and tbenote produced in evidence must correspond with the description given in the indictment, or it will be a fatal variance.
    Wherever an averment is descriptive of that which is material, it cannot be rejected as surplusage.
    Where the offences charged in the first and second indictments, are upon the face of the pleadings legally distinct, no averment that they are one and the same offence can make them so; therefore, if the variance is in a thing material, the plea of autrefois acquit, cannot be sustained.
    Where the charges in the first and second indictment, are in truth the same, though the indictments differ in immaterial circumstances, the prisoner may plead a previous acquittal on the first indictment, with proper averments. This rule applies to all cases where variances are immaterial, and not inconsistent with the validity of both proceedings, and would have been disregarded on the first trial.
    Wherever the offences charged in the first and second indictments are capable of being legally identified as the same offence by avernment,it isa question of fact for a jury to determine whether the averments are supported, and the offences are the same. In such cases the replication ought to conclude to the country. But when the plea of autre fois acquit, upon its face, shows that the offences are legally distinct, and incapable of identification by averments, as they must be jn all material variances, the replication of nul ticl record may conclude with a verification. In the latter case, the court, without the intervention of a jury, may decide the issue.
    Where the plea of autre fois acquit on its face, shows that it is not the*same offence of which the prisoner was before acquitted, the plea may be demurred to, oradvan-tage may be taken of it upon a replication of nul ticl record.
    IS ⅛ necessary that the record in a criminal case, should show that She offence was committed ia the county charged in the indictment, but if it issbowu to have been comm{ttPd jna town, which a public law rccites'to be in the county, this is sufficient: but if, since tbe passage of the law, the boundaries of the county have been changed, and tbe law changing the boundary, does notshov. whether the town is left within the old coun ty, or is included in that part of the county which is taken oiF, the court in such case cannot judicially know that tlic town is, or is not, intjie county.
    Whore a word is “abbreviated in a written instrument,” proof may be heard to show its meaning, or what particular word it was intended to abbreviate,
    This was an indictment for larceny. Tbe first count of the indictment, (upon which the defendant was convicted,) charged “that tbe said Mansel Hite, late of the county aforesaid, upon the twenty-sixth day of September, eighteen hundred and thirty-five, with force and arms, at the county aforesaid, unlawfully and feloniously did steal, take and carry away, one bank note of the Planters’ Bank of Tennessee, payable on demand at the Mechanics'1 and Traders’ Bank at New Orleans, of the value and denomination of five dollars, — the bank note, personal goods and chattels of John B. Hall, Samuel S. Hall and Andrew J. Blackemore, traders and merchants under the name and style of Hall, Blackemore & Co. then and there being found, contrary to tbe form of the statute in such case made and provided, and against the peace and dignity of the State.”
    To this count, the defendant pleaded a former acquittal, which plea was as follows; “And the said Mansel Hite, in his own proper person, comes into court here, and having heard the bill of indictment read, saith that the State ought not further to prosecute tbe first count of the said indictment against the said Mansel Hite, because he saith that heretofore, to wit: at the November term of the circuit court, begun and held at Nashville, in and for the county of Davidson and State of Tennessee, in the year 1835, was presented that the said Mansel Hite, (then and there described as Mansel Hite, yeoman,) at the county aforesaid, on the twenty-sixth of September, 1835, with force and arms, at the county aforesaid, unlawfully and feloniously did steal, take and carry away, one bank note of the Planters’ Bank of Tennessee, payable on demand at tbe Merchants’ and Traders’ bank of New Orleans, of the value and denomination of five dollars, the bank note, personal goods and chattels of John B, Ha 11, Sa-mueí S.' Haíí and Andrew J.- Blackemore, traders and merchants, under the name and style of Hall, Blackemore &. Co. 'Ren and there being found, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” Upon' which indictment were the following endorsements, Andrew J. Blackemore, prosecutor,— Andrew J. Blackemore, John Pücket and Jesse W. Page, witnesses sworn and sent to the grand jury, November 24th, Í835, Jacob M’Gavock, clerk. “A true bill, John M’Ga-vock, foreman of the grand jury.”
    “And afterwards, at the term aforesaid, came John Trimble Esq. Attorney General, protem. of the seventh solicitorial district, and the said Mansel Hite in custody of the sheriff of Davidson county, and then being arraigned, and on his arraignment pleaded not guilty to the indictment aforesaid, and for his trial put himself upon the country, and the attorney gene-raljdoth likewise. Whereupon came" a jury of good and law-' ful men, to wit: (naming them,) who being elected, tried and sworn, well and truly to try and true deliverance make between the State of Tennessee and the said Mansel Hite, and the evidence in said cause not being closed, by consent of the said attorney general and the said Mansel Hite, and the' assent of the court, said jury is adjourned until to-morrow morning, 9 o’clock, and the said Mansel Hite is again remanded to jail.”
    “And afterwards, at the same term, came again the attorney' general aforesaid; and the said Mansel Hite was again led to the bar by the sheriff of Davidson county, and the jury sworn in said cause appeared in court according to adjournment, and having heard the evidence and argument of counsel on both sides, do say the said Mansel Hite is not guilty in manner and form as charged in said bill of indictment, as in pleading he hath alleged.” (Here follows the judgment of the court. After which the plea proceeds,) “which said verdict and judgment above set forth, still remains in full force and effect, and not in the least reversed or made void, and the said Mansel Hite, in fact saifh, that he the said Mansel Hite, and the said Mansel Hite, so indicted and acquitted as above set forth, are one and the same person, and that the felony and larceny, of which he l^e sa^ ^anse^ Hite was so indicted and acquitted as afore-;aid, and the felony and larceny of which he is now indicted, ’s oae an(^ ^Ie same» aQd not a different felony or larceny, and that the bank note of the Planters’ bank of Tennessee, set forth in said indictment, as payable at the Mechanics’ and Traders’ bank at New Orleans, is the same for which he is now indicted, and not a different bank note from that set out in said record, as a bank note of the Planters’ bank, payable at the Merchants’ and Traders’bank, at New Orleans, and this the said Mansel Hite is ready to verify; wherefore he prays judgment, and that by the court here, he may be dismissed and discharged from the said premises,” &c. To this plea, the solicitor filed the replication of nul tiel record, which concludes as follows: ‘‘and this, he the said John Trimble is ready to verify; wherefore he prays judgment, and that said Mansel Hite may be convicted of the premises in the said indictment specified.”
    The defendant also pleaded over to the felony, “Not Guilty.”
    The court, without the intervention of a jury, decided the issue upon the replication of nul tiel record against the prisoner, upon the ground that the plea on its face, and the record produced in evidence to support it, and which was verbatim copied into the plea, showed that the offences were distinct and not identical. The defendant insisted that a jury ought to have heen sworn to try the issue upon the plea of autre fois acquit; but the opinion of the circuit judge was, that where the plea upon its face showed that the offences were distinct in law, and nul tiel record was replied, that it was the province of the court and not the jury to decide it.
    The jury upon the plea of not guilty found a verdict against the defendan t, upon which judgment was pronounced, that he be confined three years in the penitentiary, from which judgment he appealed to this court.
    A bill of exceptions was taken to the opinion of the court, in refusing to grant a new trial, which set out all the evidence in the cause. From, this it appears, that the note produced in evidence, was a note of the Planters’^bank of Tennessee, payable -at the “¿!íéeA’s”and Traders’ bank of New Orleans, The cashier of the hank was introduced as a witness to prove that ££Mech’s” was an abbreviation of the word Which he proved. This evidence was objected to, but ad- , r, J ’ tmtted by the court.
    There was no evidence in the'record which showed that the offence was committed in Davidson county. The proof 'on this point was, that the offence was committed at — Morgan’s in the town of Haysborough.
    
      E. H. Ewing, for plaintiff in error.
    We think that the judgment below should be reversed for the following reasons:
    1. Because there was a record produced to the court corresponding with that cited in the plea; and as the replication, nul tiel record, putin issue only the existence of a record conformable to the recital in the plea, judgment should have been for the defendant. As the grounds however, upon which the circuit judge proceeded in his determination of this plea, may riot be very apparent upon the record in this cause, I will state them. He understood the replication of nul tiel record to putin issue the identity of the offence charged in the record vouched, with that charged in the present indictment, and by a comparison of the present indictment, with that contained in the indictment in the record pleaded, he discovered a material variance, as he said viz. that the first indictment charged the defendant with stealing a bank note payable at the Merchants’ and Traders’ bank, and the second, with stealing a bank note, payable at the Mechanics’ and Traders’ bank; hé stated further that he considered the plea of Unul tiel record” as meaning, that no record was produced proving or tending to prove, that the defendant had been acquitted of the offence charged in the present indictment. Now, I think that the-plea and replication of nul tiel record makes no question of identity. If they do make that question, it should be referred to a jury and not the court, for it is a question depending for its solution partly upon the record vouched, and partly upon matter extrinsic, which extrinsic matter is not proper for the consideration of the court. It may be said though, that 'the non-identity of the offences may appear completely by a com-Paiason °f the two indictments, and that the interposition of S would be thus rendered unnecessary, as for instance, one' might be an indictment for stealing a cow, and the other for stealing a horse, and that in this case, averments in the plea of “autrefois acquit" could not assist the defendant, and a jury woúld-be. of no use. To this we answer:
    1. That the- replication cinul tiel record,” craves only an inspection of the record- and- a comparison with the plea, and that the comparison with the second indictment is inadmissible. 2 Archbold’s Practice’, page 1:2:. I Chitty’s: Pleadings,, •573: 2 do. 519.
    2. This exposition of the meaning of the replication of ilnul tiel record,” as decided by the-' circuit court, involves-the difficulty, that supposing the court not' to he able to determine the identity by comparison merely of the indictments^ the plea must he handed over to the jury to hear extrinsic evidence, which, according to the decision in 2 Yerg. St'atí vsi Hill, is contrary to the nature of the replication, which pre-' sents an issue to the court, for if the court once has an issue to it, that issue cannot he handed over to the jury.
    3. This is not a case in which the court could determine, whether the offences charged are identical, by comparison of the two indictments; it ought to have been submitted tu a jury, for upon inspection of the bank note by the jury, it may appear that it is doubtful whether the word “Mechanics’” or “Merchants’ ” is meant by the hieroglyphic “Mech’s.” In such case, the court would have said to the jury, the paper here produced, the evidence contained in this bank note might apply to either indictment; the defendant has been already in' jeopardy, and in such case must be discharged. The question of identity depends upon whether the evidence produced will apply equally to both charges; if it will, the plea is good: now I do not care whether there is actually any doubt as- to this abbreviation or not; there might have been, and this shows that the court should not have decided this point of identity, because it could not look to all the circumstances which tend" to prove identity. Again, this is not a case in which the court could determine the question of identity of offence, by comparison of the indictments, because, the bank note may be-payable “at the Merchants’ and Traders’bank of New Orleans, or at the Mechanics’ and Traders’ bank of New leans,” or at both. Now as a statement where a banknote is payable is not material, unless made so by becoming descriptive, -suppose' the attorney general had in his first indictment omitted the second place of payment, and in his second indictment the first place of payment, both indictments would have been good, the evidence would bave applied to both, and as the court looked no further for identity than the two indictments, the defendant would have been twice in jeopardy, &c. Chitty’s Cx. L.-652i 2 Hale 255.
    Again, the replication, nul tiel record, does notput in issue, the identity of the offences-at all. Why? The plea says, “it ■was presented, &c.” and sets out a certain record; it does not say that this record proved any thing, but it goes on further and says, “I aver and will prove that the offence, fee. set out in the recited record, and the present one, are the same,” and the proof is to be by matter extrinsic. Well then the replication merely says there is no such record as that you have set out. Now, if the record alone were produced and relied on as proof of identity, then truly the replication of nul tiel xecord would go to the identity, because, if the replication •were sustained, it would defeat the whole plea.
    The court then erred, either in taking cognizance of Ms issue, or in deciding it against the defendant. For if the issue presented'the question of identity, the court should not haye taken it under its cognizance, the constitution of Tennessee entitling us to have facts tried by a jury. If it did not, it was decided wrong, .for there was a record corresponding with the plea.
    Now, all of this error originates thus. In England the replication, nul tiel record, gives an issue to the jury, a mixed question of record and matter in pais, and the jury decide upon the whole matter. There, if there is a defect in the first indictment, the plea is demurred to; if not the attorney general either replies that the offences are not identical, or the person is not identical, which present issues purely of fact, or that there is no such record and that the offences are not 'iden<ical, presenting thus a mixed issue-
    
      If it be the law of this country that mil tiel record must go to the court, and that that puts in issue nothing but the fact of acquittal, this is no hardship on the state, as the attorney general can always see with certainty by inspection, whether he can sustain his replication; if he sees there is such a record, he can then, reply to the country, that the offences or persons are not identical.
    The court erred in admitting Hobson’s testimony to explain the word. “Mech’s” in the bank note. Also, in not granting anew trial, for the proof varied from the indictment. The word “Mech’s” is not assisted in the indictment by an inuendo, nor is the note any where set out as it appears in proof. Now, if Hobson’s testimony be not admitted, how does the jury come to its conclusion. A jury should not be allowed to find an abbreviation to mean a word, unless the abbreviation were such as to exclude the possibility of any other English word being meant. Now, “Mech’s” is not the usual abbreviation for Mechanics’, and as we know nothing of the name of the bank, “Mech’s” may do for either. Starkie on Evidence 1541.
    
      Geo. S. Yerger, Attorney General, for the State.
    1st. As to the plea of former acquittal, the principle, is, tvhenever the same evidence will support both indictments it is a good plea; and that unless the first indictment were such that the prisoner might have been convicted upon it, by proof of the facts contained in the second indictment, an acquittal on the first is not a bar. Fosters’ Cr. Law 361. Vandercombs case, 2 Leach Cr. Law 716. 1 Chitty Cr. Law 453, 454, 455. Archbold’s Cr. PL 88, 89.' Hughes case,-4 Rodgers Cr. Recorder 132.
    If there is a fatal and material variance which could have been tajeen advantage of upon the first trial, the plea is not supported; for although averments may supply immaterial variances, they cannot supply a material or fatal one. 2 Hawkins 517:2 Leach 708: 1 Chitty Cr. Law. 453, 455. 1 Leach 448. Archbold Cr. PL 88, and cases cited.
    The question then is, was there such a fatal variance, or are the two offences in point of legal identity the same. The 
      first indictment charged stealing a note payable at the Mer-* chants and Traders Bank of New Orleans. The second charged the larceny of a note, payable at the Mechanics and Traders Bank of New Orleans. •
    I admit that in Larceny a general description of the note stolen is sufficient without particularly describing it. 3 Chitty Cr. Law 969, Note F. 2 Leach Cr. Law 1103; 2 East, PI. Cr. 601, 602. But if it is described and set forth, a substantial variance in the description, although in a matter that might have been omitted, will be fatal. Roscoe Cr. Ev. 77, and causes there cited.
    Sometimes unnecessary averments, may be rejected as sur-plusage where they can be disconnected from the charge, but where they are connected with the charge and are descriptive of that which is legally essential, and particularly, where the allegation is descriptive of a written instrument, then, although the descriptive averment may have been unnecessary; still it must be proved as charged. 2 Russel 706. 3 Starkies’1530, 1531, 1542, 1547, 1586, 7. 1 Chitty Cr. Law 232, 2 Leach 594.
    As in describing a horse, it is unnecessary to state his coL or, but if it is stated, it must be proved as laid. 3 Starkie 1531, 1542, 1543, 1546,4547. See also Cravens Case, Russell and Ryans Cr. Cases 14. United States v. Porter 3 Days Cases, 283; Challdy’s Case, Russell and Ryan Cr. Cases 258.
    A note payable at the Mechanicks and Traders Bank, is ⅞ different instrument from one payable at the Merchants and Traders; Bank, they are not legally identical. An allegation that the note was payable at the one place, would not be supported by a note payable at the other. The indictment in describing the note, need not have described it as payable at any particular Bank, but having done so, it becomes matter desr criptive of the identity of the instrument, and the proof must correspond with the description.
    In all cases, where the variance is ’only prima facie material, or where an averment is permitted to reconcile the apparent discrepancy, if the plea is general, without such averment, the court must take the plea as they find it; and without such averment, it will be no bar; as where the plea alleges, that A. . , 1 o ? indicted and acquitted for killing B., or for stealing the goods ofB., it would not be a bar to an indictment for killing C. or for stealing the goods of C. because the offences are distinct and not identical upon the face of the pleadings. But if the plea had have averred that B and C. were one and the same person, and that he was known by both names, it would have been.good. 1 Chitty Cr. Law 460, 4 Rodgers Cr. Recorder 132. It is therefore manifest that a plea alleging an acquittal for stealing a note on the Planters Bank, payable at A. is not a bar to an indictment for stealing a note on the Planters Bank payable at B.
    But it is said in argument, that the replication of nul tiel record admits the identity of offence and person, and as these were admitted, and the record produced in evidence, corresponded with that in the plea, that the prisoner ought to have been discharged, for which (Archbold 91) is cited. This position ⅛ deemed not to be law: and the authority cited proves the reverse, for at the same page he gives the form of a replication of nul tiel record, aud then says a jury are instantly sworn to try the issue; what issue? The answer is, the issue whether the offences are identical: now if this were admitted by the replication, why swear a jury? the argument is the replication admits it; it is surely a foolish and idle ceremony to swear a jury to ascertain a fact, which is admitted of record.
    But the books lay it down, that a replication of nul tiel record, puts in issue the identity of the offences. 2 Hale P. Cr. 25§. It denies that he was acquitted,,or that there is any record of acquittal of the same offence with which the prisoner is then charged.
    But again it is said, the court ought to have found the issue of nul tiel record for the prisoner, because the record stated in the plea, and that produced in evidence in support of it were the same. This is true, but the plea of autrefois acquit and the replication of nul tiel record to it, not only puts in issue the record vouched in the plea, but also the effect of that record. The issue then was, not only whether there was such a record as stated in the plea, but whether such record so stated, operated as an acquittal of the offence with which the prisoner was charged. The State says by her replication there is no such record of a former acquittal of this identical offence. The prisoner by his plea says there is. The issue then is whether there is such record of a former acquittal. The court says there is not, why, because you are now indicted for one' offence, and your plea on its face and the evidence ip support of it, show' you were acquitted of another and distinct offence.
    It is objected that the jury dnd not the court ought to have decided the plea of autre fois acquit.
    
    The court upon a plea of former acquittal is not bound to submit it to a jury, unless there is matter of fact to tryr Hill v. the State, 2 Yerg. Rep. Indeed it is matter of discretion even in that case; 2 Hale 255. But when the prisoners plea, clearly and-undoubtedly shows the offences- tobe distinct, and there is no averment capable of identifying them, there is nothing to try by a jury. And in Kentucky it has been decided as here, that the court must try the issue upon a plea of former acquittal. Brady v. Commonwealth, 1 Bibb 517.
    A plea of former acquittal, consists of matters of record and of fact both. The matter of fact consists in the averment of the identity of the offences charged in both, and of the person j and when these averments can be legally made, and are proper to be tried, the modern practice in England seems to be to submit the plea to the jury empannelled to try the plea of not guilty, though both issues are not submitted at the same time. See. Archb. Cr. P. 90. Starkie Cr. PI. 368. 1 Chitty'460. 1 Leach 134,^and the replication to the plea general-* iy concludes to the country. Archbold Cr. PL- 90. 2 Gude ders Cr. Practice 618.
    Mr Archbold says, it is submitted to a jury because' in crinr* inal cases, there is no trial by the record, for this he cites no authority, and if he means, that the judges are bound to sub-* nlit every plea of this kind replied to, to a jury, he is contradicted by many authorities.
    The cases most clearly show, that the judges frequently decided the plea, without the aid of a jury. 2 Hawkins 516, §2, 518 §4. 2 Hales P. Cr. 242, 243, and they only referred it to a jury or inquest, when the facts pleaded were *° ascerta>ned, and when ascertained! could be available.
    is only necessary or proper to refer this plea to a jury when it isnecessaay to ascertain the truth of the facts, i. e. identity of person and of offence; but when the plea upon its face shows this to be wholly useless and unnecessary, the court ought to decide it. As where’ the record set out in the plea, clearly shows that the offences are different in point of *egal estimation, and no averment is permitted to identify them, or where if it is permitted; there is none.
    In Vandercombs case, the averment was that the offences were the same; the court skid they could iiot be, for in the first he could' not be convicted of larceny, as the indictment Charged a burglary with an intent to steal, and the last charged an actual stealing.
    Whenever the variance between the record pleaded and the indictment, is incapable of being identified according to legal principles by any averment, or where there is no such averment, if it is permitted, then there is no use for jury. As if a man is indicted for stealing a cow, the property of A., and lie pleads a former acquittal, and the record of acquittal set forth in his jilea, shows he was acquitted of stealing a horse the properly of A., here the averment that they are the same offence is nugatory, because the court sees in point of law, they are distinct offences, and there can be no averment that the offences are the same, unless proof or evidence of stealing á cow, supports in law an indictment for stealing a horse. See 2 Hale 244, 5, &c. for a number of cases where the law adjudges the offence to be different or distinct.
    The question always is, whether the variance between the two records is material or fatal, or immaterial. 2 Hawkins 516, 517 §3. If it is fatal and such as would have defeated the first indictment, no averment can help it, and in such case there is no fact for the jury to try. All the cases which I have cited, as to what is a fatal variance will illustrate this. But when the variance is on its face immaterial, as were it could not have availed the prisoner upon the first trial, there the plea ought to be submitted to a jury, to find the fact, whether they are the same offence. As where aman is indicted for stealing the goods of A, and acquitted, and he is afterwarcL indicted for stealing the goods of B., this variance maybe cured by averring that B. was known as well by one name as-the other. So in variance of time, place, &c., all of which would not avail on the first trial. In all such cases, whether they are one and the same offence depends upon proof.
    The replication of nul tiel record, denies that there is any record of acquittal, as the defendant in pleading has alleged; if therefore the record set out in the plea, and given in evidence to sufficiently show the offences to be distinct, then of course there is no record of former acquittal, and as the evidence is conclusive, it is record evidence, and must be determined by the court.
    The distinction seems tome to be, that where the plea shows that in point of law the offences charged are distinct, and incapable of identification by averment, the court may at once decide that there is no such record, because the replica-ture of nul tiel record, not only puts in issue, whether there is such record as that pleaded, but whether the record as pleaded-, shows it was or was not an acquittal of the same of-fence. If from the face of the record it might or might not be the same offence, the variance being immaterial, then it is referred to ajury, but if the record pleaded shows it a distinct offence, incapable of identification by averment, then the judgment of the court should be, that there is no such record of a former acquittal, as the State in replying has alleged. But when the plea does not show it, and it depends upon proof, it ought to be submitted to the jury. The court is to judge from the plea, whether there is any matter of fact to try; if there is not, it may try the issue of “nul tiel record.” What would have been the uste of the court submitting this plea to the jury? if they had found they were one and the same offence, the court could not have pronounced judgment upon such finding for the prisoner, for if the plea on its face shows the offences are legally distinct, and not the same, notwithstanding the finding, the court must pronounce judgment t>f respondeat ouster, and such judgment necessarily decides there is no record of acquittal.
    The court must render judgment on the whole record, therefore if the charge in the indictment is not one recognised by 
      ^aw> an(^ Pr’soner instead of demurring, pleads not guilty,' and the jury find him guilty, the court cannot give judgment on the verdict, but must give iudgment on the indictment. So when the charge is legal, but it is attempted to be avoided by a plea in bar, which on its face is bad and might have been demurred to, although the jury find the plea for the prisoner, the court cannot discharge him, for they are bound to notice that the plea although true,, is not a good defence in law, and in such case must “notwithstanding the verdict,” render judgment of respondeat ouster, and-that there is no such record, and that he plead over to the’ felony. 14 Viner Ab. Title Judgment, page 585, 586, 587. 4 East Rep. 509.
    The not submitting it to the jury therefore, supposing ic informal, is not erroneous, for if the error is merely formal and not to the disadvantage of the party, he cannot assign it for error. 2 Bacon Ab. 491. 5 Colee 39: 8 Do. 39, 3' Cranch 300. Act of 1309, c. 126, therefore if the court see the same judgment must have been pronounced by the court,; whether submitted to the jury or not, it is not error.
    There was no error in receiving Hobsons testimony, to explain what “Mechs” meant. 1 Starkie Ev. 431,5 Jobm Rep. 30, 31. Kingv. Hart, 1 Leach 145. 3 Starkie 996, 1033 note, 1036.
    The record shows the offence was committed in Haysbo-rough. The act of 1755, recognises Haysborough as a town’ in Davidson county. The court and jury are bound to notice all facts recited in a public statute. 1 Chitty Pleading 146,-
    
      B. Chapeze (of Bairdstown Ken.) in reply.
    The questions arising on the plea of autre fois acquit in this case, are deemed of great importance to the criminal practice, and deserve great consideration.
    A great and leading principle in criminal jurisprudence is, that where a man has been pronounced not guilty on a valid indictment, he cannot again be put upon his trial for the same offence.
    If the offences in both indictments are the same, a convic-áon or acquittal may be pleaded in bar, although they may be ■differently described; for a crime maybe differently described in different indictments, and yet be identically the same fence, and the same evidence applies to each, so far as it is essential to set forth the crime. Arch. Cr. PL 88. In the case of the King v. Emclen 9 East 437, autre fois acquit was pleaded by the accused, arid presented to the court by demurrer- Abbot for the government contended “a former acquit-fal was no bar, to a subsequent prosecution, unless the defendant might have been convicted on the first indictment by ■“proof -of the facts contained in the second.” These expressions seem to harmonize with those of Archbold. Lord “Ellenborough said: “It appears to me that a jurat is not a £‘necessary part of an affidavit to be stated in an indictment; in ■“assigning perjury in such affidavit, it is only necessary to state “so much of it as constitutes the crime &c.”and he sustains the plea in bar, of autre fois acquit. And so in this record pleaded, the place where the note was payable was not necessary to .be stated, it was only necessary to state as much of it as constitutes the crime, namely “the taking, together with the aver-ments proper to substantiate the larceny.’’' If so, there was a sufficient indictment formed in the first instance, on which the party has been tried and acquitted of the same offence which is now charged by the second indictment, and therefore such acquittal is a good plea in bar, to the present indictment. 2 Hawkins 524-5-7-9. 1 Chitty 450. If the crimes are so distinct, that evidence of the'one will not support the other, it is said, that an acquittal of the one shall not be a bar to the prosecution of the other. The point upon which this principle turns, is on the analogy in the “crimes,” not the difference .in the description of the “crimes” and see this illustration by the case putin 2 Leach 708, to 721, Vanderconb and Abbot’s case.
    “The court jvill discover that the plea in that case was overruled because the “crimes” were distinct. The one was for breaking and entering and “stealing;” the other for “breaking ;and entering” with an “intent to steal;” two distinct offences in their nature, but not a difference in the description of the same crime in its nature, as is the case under review. Let us apply the principles of the foregoing authorities to the one Pen^ng- The first indictment charges the prisoner with “stolen, taken and carri.ed away one bank note of the “Planters bankofthe State of Tennessee payable on demand “ at the Merchants and Traders bank of New Orleans: upon “this h.e was acquitted. The second charges him with hav“ing “stolen, taken and carried away one bank note of the “Planters bankofthe State of Tennessee, payable on de“mand at the Mechanics and Traders bank of New Orleans.” The question arises, is the crime the same charged in the two bills of indictment? I say, with great deference, they are identically the same crime, but differently set out in each indictment. Would “the evidence necessary to support the “second be sufficient to procure a legal conviction on the first?” I say no, not because the crimes are different, but because each indictment contains a different description of the “same crime.” If they do not appear the same, it would be competent by extrinsic evidence to show them so, and to that end it may be used. The description in an indictment is arbitrary; although more may be set out than is sufficient to maintain the prosecution m law, yet when so set out, it need not be proved. 2 Russell side page 171 It is not necessary to describe a bank note particularly, as a bank note for the payment of £1, £5, or £20, because, for whatever sum it may be payable, it is still a bank note. 2 Russell 169, side page. See the reasoning by the author. If the rule contended for by the State is established, how many prosecutions wight be maintained against a man, for the stealing of one bank note?
    An indictment for stealing a bank note of five dollars, of such a bank is good; or it may be described as a bank note of five dollars, of such a bank, payable at such a place, that would be good also, but different in description, and because so differently described, is it a different “crime?” No it is only a different description of the same crime. Each description would be good, and yet as argued, the one is no bar to the other, although the party charged was acquitted or convicted. Because each indictment has not the same description, therefore it is argued, they are not the “same crime;” would not this lead to endless oppression? But to thwart this, extrinsic evidence is allowed to ascertain whether it is the “same crime” ia truth. If not, then civil liberty would not depend on law as expounded from the bench, but as guided by the governments’ Attorney.
    The principles referred to by Roscoe are not denied. At the conclusion of the note he says the court will be more strict in requiring proof of matters alleged in criminal, than in eivil cases, but this strictness has application to each case in this, as the indictment alleges, so must the proof be commensurate, and this is a rule not to be departed from. But this alleged strictness requiring the conformation of the “allegata et ;probata” was intended to sustain, not to oppress. The latter would be the effect by estopping an accused from showing the crime tobe the same, although differently described. I contend further, if an indictment sets out a bank note incorrectly and a fair trial is had, and the jury are suffered to decide on the case, and there no is instruction from the court to disregard the evidence, and a verdict is found for the prisoner, a bar is formed in law. It is “jeopardy” in reference to a prosecution for the same subject matter, for it is the same crime.
    In Vandercomb and Abbotts case, Judge Buller said the evidence did not apply to the indictment; the jury found an acquittal; this was pleaded, but Judge Buller does not, in the learned opinion, intimate that this was not jeopardy in reference to the crime embraced, but overrules the plea because the “two offences are distinct in their nature.” When the indictments show different substances, such as a die alleged to be made of iron and steel, and proof that it was made of zinc and antimony, or an indictment alleges a horse, and the proof that a cow was stolen, it is legally impossible that they are the same.
    The accused was acquitted on a good indictment, not re^ versed; he seeks its benefit. This record shows a practical evidence of “jeopardy.” If the acquittal is not reversed, the prisoner should go hence. 2 Hale 243. The prisoner is entitled to be discharged. See note Jl. 2 Leach 715. The only way the court can know the record in its extent, is by demurrer, and this would have freed the case from the alleged embarrassment. Then the accused would have known by previous rule, that the whole record would be before the court. No case can be found wherein the court can decide on the re-⅜ cord at this day, but by demurrer.
    It is also a rule that a jury ought to be impannelled on the trial of autre fois acquit. 2 Hale 243. By the constitution, “the trial by jury is inviolate,” If the trial by jury is “inviolate” the accused has lost its benefit on this branch of the cause by the present decison. If the action was with the court by law exclusively, then the rule exercised by doing directly what they could do indirectly, would be proper.
    On the plea of not guilty, the venue must be proved as laid, 1 Chitty 178, side page: 2 Leach 634: 2 East 605. It is said, because Haysborough has been selected as a “place,” (not a town,) in 1799 for the inspection of Tobacco, by an act of the legislature in the then county of Davidson, it will therefore serve as proof to show that, in 1835, the court had jurisdiction of the offence; something might be claimed for this course of reasoning, if it had been proved that Morgan’s house was in the Haysborough selected in 1799 as a tobacco inspection; then the distinct facts might interlink, by reasonable action of the mind, and it become satisfied, If the legislature had called it a town in 1799, it would be delusive, because untrue. It is not a town in contemplation of law, unless it is so designated upon the statute book. “Hermitage” and Haysborough are names that may be given to farms or other places, just as the owners or the public may designate. How jnany may there not be in the county of Davidson. Proof from this uncertain source should not be made certain by its action upon human liberty. Is this proof beyond a rational doubt? And still the law proclaims that “the court will be more strict in requiring proof of the matters alleged in criminal, than in civil cases,”
    Hobson’s testimony was inadmissible: It is alleged in the indictment, that the bank note is made payable at the Mechanics’and Traders’bank of New Orleans. Let it consist ⅛ “averment” or “description.” The question is, how is this to be proved? “The best evidence the nature of the case will admit of must be produced if it be possible to be had.” Archbold’s Crim. Plead, p. 144. Is not the bank note ⅛ self the best evidence? It was before the jury, and a copy ⅛ in the record. It shows where it is made payable. Thus for instance, the best evidence of the contents of a deed or other written instrument, is the written instrument itself. Arch. Cr. PI. 114. “And so strict is the rule in this respect, that, not even the declarations of the party against whom it is to bé used, are admissible for this purpose unless the non-production of the instrument be accounted for.” Archbold’s Cr. Pi. 114.
    By the rules of law, the bank note offered, shows it is payable at the “Mech’s” and Traders’ bank. As Meek’s is the abbreviation of neither Merchants nor Mechanics, and in fact has no intrinsic meaning, it does not correspond with the indictment, which avers, it was payable at the “Mechanics” Sic. not at the “Mech’s” &c. and to aid it by parol, when' no mistake or fraud, is in violation of law, and the objection well conceived by the attorney for the accused, and is believed ought to be sustained.
   Turley, J.

delivered the opinion of the court.

The questions arising in this case, on the plea of autrefoisf acquit, are of great importance to the criminal practice, and have deserved and received at the hands of the court, a careful, consideration and examination. It is a sacred principle of our law, that no man shall be placed in jeopardy twice fox' the same offence. Therefore, where a man has been proj nounced not guilty on a valid indictment, he cannot be dgairi indicted upon a charge of having committed the.same supposed crime. But while we guard with great care this rule of defence, so consonant with justice and reason, we-must at the same time, with equal, care see that it is not perverted from its intended purposes, and made to protect from punishment, those, whom the law never designed should fall with its operation.

To entitle a prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crime charged in the last bill of indictment, be precisely the same with that charged in the first, and that the first bill of indictment is good in point of law. 1 Chitty’s Crim. Law 453: l East’s Pleas of the Crown 522. The true test by which the question, whether a plea is a sufficient bar, may be tried, is whether the evi^ence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first. Archbold’s Crim. Pl. 88: Rex vs. Emden, 9 East 437. If the crimes are so distinct that evidence of the one, will not support the other, it is as inconsistent with reason, as it is repugnant to the rules of law, to say that they are so far the same, that an acquittal of the one, shall be a bar to the prosecution of the other. Vandercomb’s case, 2 Leech Cr. Law 717. Now, to apply these principles to the present case. The first indictment charges the prisoner with having stolen, taken and carried away, one bank note of the Planters’ bank of the State of Tennessee, payable on demand at the Merchants' and Traders’ bank of New Orleans: — upon this he was acquitted. The second charges him with having stolen, taken and carried away, one bank note of the Planters’ bank of the State, payable on demand at the Mechanics’ and Traders’ bank of New Orleans.

The question then arises, is the crime charged in the two' bills of indictment the same, and would the evidence necessary to support the second have been sufficient to procure a 'legal conviction on the first? The affirmative of this proposition is contended for by the prisoner’s counsel, because they say,

Í. The place where the note was payable, formed no material part of the description of the note; need not have been stated, and therefore might have been rejected as surplusage,- and required no proof.

And second, that although the offence charged in the two indictments, is not precisely the same in words, yet it is in substance, differing only in an Immaterial circumstance, which is aided by the averment in the plea, that they are the same, and that for these reasons, the proof applicable to the second-bill of indictment would have been equally applicable to the first.

It is certainly true, that the place of payment formed no material part of the description of the note, and need not have been stated in the bills of indictment, as has béen decided in tiie case of the King vs. Johnson, 2 Leach 1103: King vs. Simpkin, 2 Starkie 429: King vs. Milnes,2 East P, Cr. 602: but it is equally true, that having been stated, it became 7 ... , , , . necessary to prove it, otherwise it would not have' appeared that the note charged to have been stolen* was the same as that described in the bill of indictment. This position is supported by many authorities. In Roscoe’s Crim. Evi. page 77, it is said, that if a person or thing necessary to be mentioned in an indictment, is describecfwith circumstances of greater particularity than is requisite; yet, these circumstances must be proved, as if a man were charged with stealing a black horse, the allegation of color, though unnecessary, yet being descriptive of that which is material, could not be rejected.

In Dorsett’s case, 5 Roger’s Rep. 77, referred to in note 1 to Roscoe’s Crim. Evi. 77, it was held that where an indictment for coining, alleges possession of a die, made of iron and steel, proof of one made of zinc and antimony was a fatal variance; and in the case.of The United States vs. Porter, 3 Day’s Cases 283, that an allegation in an indictment, which is not impertinent or foreign to the cause, must be proved, though a prosecution for the same offence might be supported without such allegation, and that the court will be more strict in requiring proof of the matters alleged in criminal, than in civil cases. These authorities fully sustain the position, that the places of payment specified in the bills of indictment, are made material and must be proven; from which it follows, that the proof necessary to sustain the one bill of indictment, could not by any possibility support the other, as the places are not the same but different, and that the offence charged in the last bill of indictment is not the same with that charged in the first. Then, no averment that they are the same offence, can make them so. You cannot aver an impossibility, and it is an impossibility, that the stealing of anote payable at the Mechanics’ and Traders’ bank, should be the same offence with that of stealing one payable at the Merchants’ and Traders’ bank. If the charge be in truth the same, though the indictments differ in immaterial circumstances, the prisoner may plead his previous acquittal with proper averments; for it WOuld be absurd to suppose, that by varying the day, or any allegation the precisé accuracy or which is not material,. the prosecutor could change the rights of the criminal, and sub" ject him to a second trial. Thus it has been held, that if a man be indicted for a murder as committed on a certain dáy, and is' acquitted, and is afterwards'indicted for Silling, the same person on a different day, he may plead the former acquittal in bar, notwithstanding this difference, for the day is immaterial. Áncf if be he indicted for the murder of a certain person unknown, and is afterwards charged off am indictment for the same offence-specifying the individual slain byname, he may rely upon the previous acquittal. 1 Chitty’s Cri. Law 453-4: 2 Hale 179, 244: Dyer 285: 2 Hawkins', c. 35, § 3. So that all variances not inconsistent with the validity of both proceed-mgs, may be shown lolie merely technical/ But if the variances are' in those things which are material, autre fois acquit eannót be pleaded- in bar; either the firs tindictment was ineffec* tual, and therefore the acquittal of no ávaíf, of the record will' prove not applicable to the evidence, „ and therefore the objection is needless, as in the case now under consideration, if the note stolen was payable at the Mechanics’ and Traders’ bank, as charged in the second bill of indictmant,- then the'' first was- ineffectual and the acquittal of rib avail, — if it were payable at the Merchants’ and Traders’ bank, as charged iff the first hill of indictment, then the second is not applicable to the'evidence, and- so- the ohjection-is needless-. For these' reasons; we are of opinion that this plea of autre fois acquit, contains'aó ground of defence to the hill of indictment,, and iff not well-pleaded.

But, it is said by defendant, that in point of fact the testimony is of doubtful character, and might, hut for extrinsic proof, be made to apply to either indictment; that the note charged to have been stolen, purports upon its face to have been payable ’at the uMech”s’ and Traders’ bank, which may mean either Merchants or Mechanics, and that, as the proof might have shown it to have been Merchants, a conviction on the first indictment was possible, arid that therefore, the prisoner ought to have been allowed upon his plea of aúlre fois' acquit, to show that it did- mean Merchants; and that he was entitled to a jury to determine the question. It is unquestiofi-ablyjrue that “Mech’s” may mean “Merchants” or nics”, and is perhaps, properly-speaking, the abbreviation of .neither, and that what it does mean, is a question of fact for .the determination of -a jury, but as we think, upon the plea of not guilty, and not upon the plea of autre fois acquit, and for the reason, that it must mean one or the other and cannot mean both. If it mean Merchants, then the prisoner could no.t be convicted .on the second bill of indictment. If it mean Mechanicks, he could not have been convicted on the first. The question could not have been determined on the plea of autrefois acquit., for if the jury upon that plea had found that “Mech’s” meant Merchants-; -the court must have said, then, .the first bill of indictment does not charge the same offence, with which you are charged in the last, and you must go to trial, in order to see whether or no you are guilty of the offence therein alleged against you. If .they had found, that it meant Mechanics, then the court must have said, the testimony is not applicable to the first indictment; you could not legally have been convicted thereon, and therefore were in no jeopardy.

But it ⅛ further said, that inasmuch as this plea of autrefois acquit, contains an averment of identity of offence and person, the replication of nul tiel record ought to have tendered -an issue to the country, .and that the court could not legally dispose of it without the intervention of a jury. This is true without doubt, in all cases where an averment can 'be legally .made of identity of offence, which we have seen cannot be where there is a material variance between the two indictments, 'but only where the variance is immaterial. Indeed the old .authorities are, that the court may examine proof as to the identity, or may refer it to an inquest, to inquire -whether it be ¡the same fact. 2 Hale’s Pleas. Cr. 242, 243. But the rno-,dern practice, which we recognize as more consistent with the ■general nature of .our institutions, is to .submit the question of identity to a jury, immediately empannelled for that purpose. Chitty’s Crim. Law 461: Archbold’s Crim. Plead. 90. It would have certainly freed this case from some embarrassment, if instead of the replication of nul tiel record, a demurrer had been filed to the plea of autrefois acquit, — but it is belieyed that no very serious difficulty is produced by this form of pleading. The plea of autrefois acquit, is of a mixed nature, and consists partly of matter of record and partly of matter of fact. The matter of record, is the former indictment and acquittal; the matter of fact is the averment of the identity of offence and person. Chitty’s Cr. Law 459. In all cases where the plea consists of matter of record and matter of fact, the issue made thereon, js to the country. But this does not take from the court the right it possesses of determining exclusively, what is of record and what is not. When the issue comes to be tried, the record must be produced, and if it be substantially variant from that set forth in the plea, the court will direct a verdict to be found against the plea, without submitting the matters of fact to the jury. We do not see why a court may not do that directly, which it may thus do indirectly,

In the case now under consideration, a record of a former acquittal is pleaded, which we have determined, charges an offence materially variant from the one upon which the prisoner stands convicted. If a jury had been sworn to try the issue upon nul tiel record, the court must have instructed them to find against the prisoner. Why then empannel a jury, when the fact of identity could not have been submitted to them? We are of opinion, there was no legal necessity for it.

But it is also contended, that the replication of nul tiel record, only puts in issue the record of former acquittal, as it is pleaded, that the record produced is verbatim et literatim the same with that pleaded, and that therefore, the court should have found the issue in favor of the prisoner. This reasoning seems to us to be too refined. The plea states in substance, that the prisoner ought not to be convicted of the present of-fence, because he had before been tried and acquitted upon a charge of the same offence, and exhibits a record, which upon its face shows that it is not the same. One of two things follows, either that the replication puts in issue the substantial merits of the plea, to wit: a former trial and acquittal of the charge, or the issue is immaterial. If it puts in issue the substance and not the form of the defence, then the court did right in finding there was no such record of acquittal as pleaded. If the issue were immaterial it ought not to have been regarded by the court, and judgment should have been pronounced upon the verdict on the plea of not guilty. There is then, in our opinion, no error in the judgment of the court below upon the plea of autrefois acquit; Some objections are also taken to the proceedings on the trial of the plea of not guilty, which, we will now examine.

1. It is said, no venue is proven — it is true, that no witness proves that the offence was committed in Davidson county; but it is proven to have been committed at Haysborough, and the act of 1799, c. 45, recognizes Haysborough as a town of Davidson county, which we think is sufficient to authorise the court to take notice of it as a place within the county, and is as satisfactory as if a witness had deposed to the fact.

2. It is said, that proof that Mech’s, in the face of the note charged to have been stolen, meant Mechanics, ought not to have been heard, because the ambiguity is patent, and parol proof cannot legally explain it. We do not think that the principle, as to patent ambiguities, applies to this case. We ar.e not giving a construction to a contract, but proving the identity of a note described, being merely matter of description, proof may be heard to explain what is meant by the abbreviation.

3. It is said, that this testimony does not warrant the conviction. Upon this point our opinion was delivered at the last term of this court. We see no reason from the proof now adduced for changing that opinion. We think it fixes on the prisoner, the charge of larceny, and that the jury could not conscientiously have done otherwise than find him guilty. Let the judgment be affirmed.

Judgment affirmed.

SCiP After the judgment was affirmed in the foregoing case, the counsel for the prisoner, applied for a re-argument of the cause, and upon a re-argument, all the grounds previously assumed were again gone over in written arguments furnished to the court, which were replied to in writing by the A ttorney General. All the grounds of defence, were also very ably and elaborately reviewed by W. A. Cook Esq. for the prisoner.

In the re-argument, the statute of 1803 altering the boundaries of Davidson county, was brought to the notice of the court, this statute was not before the court upon the first argument of the cause. The court, as wifi be seen from the subjoined opinion, confirmed the principles previously determined in the case, but was of opinion, as was also the Attorney General, that the act of 1803, having altered the boundaries of Davidson county, and neither the act 0/ 17.99, nor ■that of 1803, showing in what part of the county Haysborough ■was situated, the court could not judicially say, whether Hays-fcorough was now in Davidson county as altered, or in Riith-urford, that therefore the venue was not proved, and upon -.this ground alone the judgment was reversed.

The following is the opinion of the court delivered upon ¡the re-argument of the cause, by

■Tukley J.

'The court have on are-argument of this case, reversed the decision heretofore made, and find no cause for changing the .opinion delivered on any point arising out of the plea of autre fois acquit, but upon further examination, we are satisfied, that ■there is no proof which shews that the offence was commit* •ted within the body of Davidson county, as is charged in the hill ofindictment, and it is unquestionably true, that the state ¿must show that the offence was committed where the venue 'is -laid. 1 Chitty Cr. Law, 557. 2 East Pleas of the Cr. 992. The court was, and still is of the opinion, that proof showing that the offence was committed at a particular place, which is recognised by a public statute, as being within the county is sufficient. The act of 1799, c.j 6, shows that Haysborough, the place where the offence is proven to have been commit* ,ted, was at that time within the limits of Davidson county, and had it not been changed since, would be conclusive upon the subject. This was the only statute brought under the consideration of the court on the original argument, but it has since been discovered, that by .the act of 1803, c. 70, the bounda* ry lines of Davidson county have been changed, and a por-lion of what was her territory in 1799, taken' to form a psH oí* fhe county of Rutherford. The court would, previous' to file act of 1803, have been warranted in saying that Haysbo-iough was in Davidson county, but not so since, for we cannot know judicially in what part of the county Haysborougli was' situated1, and it may well be, that it was in that which now forms a part of the county of Rutherford, and if so, the circuit court of Davidson has no jurisdiction of the offence. We therefore reverse the' judgment of the court below, a'ncf demand the prisoner for anew trial.

Judgment reversed.  