
    State of Mississippi v. Jefferson Kennedy et al.
    [50 South. 978.]
    Ckiminal Law and Procedure. Unlawful cohabitation. Former jeopardy. Constitutional law. Constitution 1890, sec. 22.
    Under sec. 22, Constitution of 1890, providing that there must bean actual acquittal or conviction on the merits to bar another prosecution, a nolle prosequi entered with the court’s consent after the beginning of the trial, although entered over defendant’s objection, will not bar a subsequent prosecution for the same-offense.
    Fhom: the circuit court of Smith county.
    Host. Robert L. Bullard, Judge.
    Kennedy, a man, and Stella Fraweek, a .woman, appellees,, were jointly indicted for unlawful cohabitation, and pleaded former jeopardy. The state demurred to- the plea; the court overruled the demurrer, and judgment final was entered for -the defendants and the state appealed to the supreme court.
    The appellees were jointly indicted for unlawful cohabitation, at the October, 1908, term of court, and were put on trial,, but after the state had offered evidence the- district attorney, in ojien court, with consent of the court, over the objection of defendants, entered an order of nolle prosequi. Subsequently,, at the .October, 1909, term of court the appellees were again indicted for the same offense, and to this second indictment they pleaded former jeopardy, predicated of the judgment of nolle prosequi above mentioned.
    
      George Butler, assistant attorney-general, for appellant.
    The two indictments show that the offenses were not the-same. In the first indictment it was alleged that the appellees had been unlawfully cohabitating together during and for two-years prior to the finding of the indictment v'hich was dated. October 80, 1908. Tbe second indictment alleges tbat the ap-pellees bad been living in ■unlawful cohabitation during and for two years prior to- tbe finding of tbe indictment, wbicb was dated October 26, 1909. In tbe first indictment it is alleged tbat tbe appellees habitually engaged in unlawful cohabitation during and for two years prior to October 30, 1908. Tbe second indictment alleges tbat tbe appellees habitually indulged in sexual intercourse for, and during two years prior to October 26, 1909. Thus it will be seen tbat under tbe indictments as drawn, the appellees are charged with habitual sexual relations during two years prior to tbe return of tbe indictments. Now, appellees could not have been tried under tbe indictment of October, 1908, for an offense occurring subsequently to tbe finding of tbat indictment, and even if they bad been actually acquitted on tbe merits of tbe indictment of 1908, such would not have operated as a bar to a subsequent offense committed after October, 1908, and prior to October, 1909. If appellees lived together, as alleged in this subsequent indictment, and as shown by tbe plea, during 1909, they could have been tried upon this indictment, even though they bad been actually acquitted or convicted on tbe prior indictment; and if we concede tbat tbe plea would have been good as a defense at common law to tbe offense charged by tbe first indictment, it does not affect this case. Nor tbe plea was too broad, and covers a year of time for wbicb appellees bad not been indicted. If the plea bad covered only part of tbat time in tbe second indictment covered by tbe first indictment, to-wit: October, 1907 to 1908, then possibly it would have been good at common law, though there are many authorities to tbe contrary as hereinafter cited; but as stated, inasmuch as tbe plea covered a year of time not included in tbe first indictment, it was entirely too broad, and tbe demurrer was rightfully sustained. •
    Under section 22 of the constitution, tbe first prosecution was not a bar to tbe second one because there was no actual disposition of tbe case on its merits. An actual acquittance or conviction on tbe merits is a sine qua non to tbe bar. Tbis was expressly beld in tbe case of 'Roberts v. Stale, 72 Miss. 728. Tbe former proceedings might bave applied in bar under tbe common law, but even tbis bas been denied. See State v. HodgTcins, 42 N. H. 474; Slate v. Thornton, 35 N. O. 256; Slate v. Champean, 52 Vt. 513, 36 Am. Hep. 754; State v. Roe, 12 Vt. 93. ”
    [No counsel appeared for appellees.]
   Mayes, J.,

delivered tbe opinion of tbe court.

We only deem it necessary to notice one question involved in tbis case, and tbat is tbe action of tbe court in overruling the demurrer of tire state to defendant’s plea of former jeopardy. Tbe court below should not bave overruled tbe demurrer of tbe state, since tbe plea itself shows tbat there bad been no actual acquittal or conviction on tbe merits, and tbis being tbe case tbe state was not barred from further prosecution. Stection 22, of tbe constitution of 1890, expressly provides tbat before a person shall be considered to bave been once in jeopardy, so as to bar another prosecution, there must be “an actual acquittal or conviction on tbe merits,” and there bad been no such acquittal or conviction. In tbe case of Roberts v. State, 72 Miss. 728, 18 South. 481, in speaking of tbis section tbe court said: “It was put into tbe constitution in tbe interest of due and proper administration of tbe criminal law, is too plain for construction, and means exactly what it says.”

Tbe action of tbe court below in overruling tbe demurrer was error. So ordered.  