
    George Rocco v. The State of Mississippi.
    1. High court : practice : where pleading demurred to is withdrawn. — This court will not revise the action of the Circuit Court in overruling a demurrer to a pleading, if that pleading be withdrawn before trial.
    2. Criminal law : amendment op pleading s . — The English rule allowing amendments to pleadings in prosecutions for felonies, has been extended in the United States to cases of misdemeanor. See Commonwealth v. Burge, 3 Penn. R. 262; Foster v. Commonwealth, 8 Watts & Serg. 11; 13 Mass. 456.
    3. Same : amendment discretionary : when not revised by this court. — The allowance or refusal of amendments to pleadings in criminal prosecutions, is to a great extent within the discretion of the presiding judge ; and his action on this subject will not be reversed in this court, if it appear that the prisoner suffered no injury thereby.
    4. Pleading and practice: withdrawal op pleading, eppect op: demurrer. —The withdrawal of a pleading by the pleader, in effect accomplishes the same end as the sustaining of a demurrer to it: if, therefore, a pleading be withdrawn before trial, but after a demurrer to it has been overruled, the demurrant cannot assign for error the judgment of the court below overruling his demurrer.
    5. Criminal law: amendment op indictment. — An amendment to an indictment for retailing, by striking out the words “ and to divers other persons,” which had been inserted immediately after the name of the person to whom the illegal sale is charged to have been made, is authorized by the provisions of Art. 262, p. 615 of the Revised Code.
    6. Same : autrefois convict and acquit : how defence made. — In order to render the defence of autrefois convict or acquit effectual, the defendant must not only show the record of his former conviction or acquittal, but he must show by evidence aliunde, the identity of the offence of which he was formerly convicted or acquitted, with the offence charged in the indictment to which the defence is made.
    
      1. Same : same : rule, in offences capable op repetition. — In the prosecution of offences which from their nature are capable of repetition, each separate act being a distinct and substantive offence, as retailing, gaming, &e., no presumption of the identity of offences charged in two indictments, will arise from the similarity of the language used in the indictments, or from the fact that the evidence sufficient to convict under one is also admissible under the other; but in all such cases the defendant, relying upon autrefois convict or acquit, must in addition to the production of the record of former conviction or acquittal, show affirmatively by other evidence, that the offence charged in the indictment on which he is arraigned, is identically the same offence charged in the indictment on which he has been tried.
    8. Same : same : rule where the same evidence admissible under both indictments. — The principle recognized in the books, that wherever it appears on the trial of a plea of autrefois acquit, that the evidence necessary to support that indictment might have been introduced on the trial under the first indictment, then the plea is supported, only applies, where it is shown that the transaction which was the subject-matter of the first indictment, is the same as the one on which the last indictment is predicated; but where this identity is shown, the prisoner must be acquitted, whether in fact the evidence was introduced on the former trial or not.
    9. Same : grand juror competent witness, &c. — Under the provisions of Art. 252, p. G14 of the Revised Code, a grand juror may be examined in court in relation to the action and proceedings of the grand jury, and the testimony of witnesses before them.
    ERROR to the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.
    This was an indictment for retailing, containing two counts. In the first count, the prisoner was charged with retailing vinous and spirituous liquors in less quantities than one gallon, and without a license, to “John Hobart, and to divers other persons to the grand jurors unknown.” The second count contained the same charge, with the additional averment, that the prisoner “ suffered and permitted the liquors to be drunk in his house and on his premises.”
    To this indictment the prisoner pleaded specially, a former conviction for the same offence, and set out with his plea the record of his conviction, from which it appeared, that at the same term of the court at which the present indictment was found, another indictment was found against him, in the first count of which he was charged with retailing vinous and spirituous liquors in less quantities than one gallon, and without license, to “ John Smith, and to divers other persons to the jurors unknownand in the second count he was charged, in the same language, with the additional averment, “ that he suffered and permitted the same to be drunk in his house and on his premises.” It also appeared that he had been convicted on this last-mentioned indictment, upon his plea of guilty, and had been sentenced.
    The replication of the district attorney to this plea, denied that the prisoner was convicted “ of the particular offence here charged, but averred that he was convicted of a similar offence in the sale of liquor to one John Smith, and not to one John Hobart, for which he is now indicted, and for which he has never been tried or convicted, and which particular offence was not embraced or inquired into, in the case in which the defendant stands convicted of record, and this the State prays may be inquired into.”
    To this replication the defendant filed a general demurrer, which was overruled.
    The prisoner then rejoined as follows:—
    “ The defendant says, that he was not convicted of a similar offence in the sale of liquor to one John Smith, as averred in the replication; and this he prays may be inquired of by the country.”
    The district attorney then, after the jury was impaneled, but before the papers were read, or any evidence submitted to the jury, asked and obtained leave to withdraw his replication and file a new one; and to w'hich prisoner excepted.
    The district attorney then filed the following replication:—
    “ This day came the State, by the district attorney, and for replication to the answer of the defendant says, that it is not true that the defendant was, on the 1st day of June, 1859, in this court, tried and convicted, upon an indictment for the same identical offence, for which he is indicted and arraigned for trial in this case, as appears of record in this court; and this the State is ready to verify by the record. Wherefore, the State prays judgment of this court against said defendant on his said plea.”
    The cause was tried upon the issue thus joined before the judge, and on the trial the defendant read in evidence the record of his former conviction, as set out in his plea; and upon this evidence the court, as the record states, “ overruled his plea.”
    It further appears from the record, that the district attorney asked and obtained leave from the court to amend his indictment, by striking out the words “ and to divers other persons unknown to the jurors,” in both counts, but at what stage of the proceedings this occurred is not known. To the amendment thus made the prisoner objected and excepted.
    The prisoner then pleaded not guilty, and the cause was submitted to a jury at the same term of the court when the indictment was returned.
    On the trial before the jury, the district attorney introduced Wm. R. Wrenn, one of the grand jury who found and returned into court the two bills of indictment against the prisoner.
    The district attorney then asked said witness the following questions :—
    1. “ If the bill of indictment in this case was found by the said grand jury, at the same time the bill of indictment against the same defendant for selling spirituous liquors to John Smith, and to divers other persons, was found ?” 2. “ Whether John Hobart was
    before the grand jury, before the indictment against Rocco for selling spirituous liquors to John Smith and others, was found by the said grand jury?”
    The prisoner objected to these questions, “ because what transpired in the grand jury room was not legal evidence;” but the court overruled the objection, and the defendant excepted.
    The evidence on the trial before the jury is not set out; but it seems, from the foregoing questions propounded to witness, Wrenn, and the instructions asked by both parties, that the jury tried these two questions. 1st. Whether the defendant had sold vinous and spirituous liquors to John Hobart, as charged; and, 2d, if he did so sell, whether such offence was the same act of which he was convicted under the indictment charging a sale to Smith ?
    At the instance of the district attorney, the court charged the jury as follows:
    
      “ 1. If the jui’y believe, from the evidence, that the defendant at any time within one year before the 23d day of May, 1859, and in this county, sold vinous and spirituous liquors in a less quantity than one gallon, without a license so to do, to John Hobart, then the jury are bound to convict him, unless the jury shall believe, from the evidence, that the defendant has been convicted of this very identical offence of so selling to John Hobart; and that the offence of which he stands convicted, is one and the same offence for which he now stands on trial: and proof that.the offences are of the*same character and same kind, is not sufficient, unless it show that the two offences are identically one and the same.
    “ 2. In offences of this character, every separate act of sale is a separate and distinct offence in law, for which the party may be indicted ; and if so indicted and convicted for one only, that is no bar to a conviction for another.
    
      “ 3. The burden of proof is on the defendant to show, by evidence satisfactory to the jury, that the defendant has been convicted for selling the liquor to Hobart, and that it was that-offence for which he was convicted in the case in which he was indicted for selling to John Smith and to others, and no other offence; and unless the defendant has done so, the jury must convict, if they believe him guilty of the offence charged.
    “ 4. The dates being the same in both indictments is immaterial, and does not prove that they were one and the same offence.”
    The prisoner asked the following charges:
    “2. That a man cannot be twice put in jeopardy for the same offence; and if the jury believe, from the evidence, that the defendant may possibly have been once legally convicted of the offence, for which he is now on trial, they must acquit.
    “4. Under the proof of a sale of vinous and spirituous liquors to John Hobart in this case; if it had been introduced on the trial of the case, the record of which is before the jury, the defendant could have been legally convicted in that case, and the former conviction would be a bar to this prosecution.”
    The court refused these instructions.
    The jury found the defendant guilty, and he was sentenced by the court.. From this judgment he sued out this writ of error.
    
      Gibbs and Wilkinson, for plaintiff in error.
    We think the court below erred in overruling the demurrer of defendant to replication of State, to the plea of autrefois convict. The replication is insufficient, first, because it is no answer to the plea; and, secondly, because it has no legal conclusion.
    We think the court also erred in permitting the replication to be withdrawn, and a new replication filed after issue joined. By the provisions of the Code, 614-16, no amendments are allowed, except to the indictment; and as such amendments were not allowable at common law, the courts cannot extend the statute beyond its plain terms. But even if it could be so construed as to extend to all the pleadings, yet, in this case, the amendment was not proper at the time it was made, that is, after issue joined. So it - was improper to permit the amendment to the indictment after the jury was sworn. The statute is express that all objections to any indictment,shall be made before the issuance of the venire, in capital cases, and before the jury shall be empanelled, in all other cases, and not afterwards ; p. 616, art. 268.
    But the main question in this cause, and the one which must ultimately settle it, is raised by the sixth and ninth assignments of error. And we contend, that the record of the conviction of the defendant, set forth in his special plea, was a bar to a conviction under this indictment. The plea of autrefois convict, and autre-fois acquit, are the same in principle, and rest on the maxim, that “ no man shall be more than once in peril for the same offence,” which has been incorporated into our Declaration of Rights (sect. 13). And a legal conviction or acquittal, in any court of competent jurisdiction, if the indictment be good, will be sufficient to preclude any subsequent proceedings before every other court. Commonwealth v. Cunningham, 13 Mass. Rep. 245; Commonwealth v. Groddard, lb. 457 ; Wortham v. Commonwealth, 5 Randolph R. 669; Bailey’s cases, 1 Virginia cases, 188, 248, 258.
    And the true test to ascertain whether a plea of autrefois be a good bar is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first. People v. Barrett, 1 Johns. R. 66; Commonwealth v. Cunningham, 13 Mass. Rep. 245; Mite v. State, 9^Yerger R. 357; Commonwealth v. Malstal, 2 Boston Law R. 177; Archbold’s C. P., by Jervis, 82; Commonwealth v. Curtis, Thacher’s C. C. 202; Commonwealth v. Coodenough, lb. 132; Gferard v. People, 3 Scammon, 363; State v. Bay, Rice, 1; State v. Bisler, 1 Richardson, 219.
    The rule undoubtedly is, that if the prisoner could have been legally convicted op the first indictment, upon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment. And it is immaterial whether the proper evidence were adduced at the trial of the first indictment or not. Bex v. Sheen, 2 Carr. & Payne R. 634; Bex v. Clarice, 1 Brod. & B. Rep. 473; Bex v. Mmhden, 9 East. R. 437.
    If the charge be, in truth, the same, though the indictments differ in immaterial circumstances, the defendant may plead his previous acquittal, with proper averments; for it would be absurd to suppose that, by varying the day, place, or any other allegation, the precise accuracy of which is not material, the prosecutor could change the right of the defendant, and subject him to a second trial. Hite v. State, 9 Yerg. R. 357; Keeler, 58 ; 1 Leach, 448; Rex v. Rmbden, 9 East. R. 437. See also 1 Archbold’s Criminal Pleading and Evidence, by Waterman, 112, in notes citing many other authorities to the same purport.
    It is believed that no case can be produced from any court holding a contrary doctrine. The dictum of a former judge of this court cannot be considered authority; the point was not properly raised, and was not necessary to the decision of the case. The plea of autrefois acquit or convict, was not before the court in that case.
    If, then, the authorities cited contain the true rules, the only question is, could the defendant, upon the trial of the indictment for selling to John Hobart and divers other persons (of which he was convicted), have been convicted, by proof of a sale to John Smith, of which he stands charged under the indictment in this case, or could the same evidence be received in both cases ? If it could, we consider that this court must hold that the plea of autre-fois convict was good. We think it clear that such evidence was admissible under both indictments at common .law; and our statute has not altered the rule in cases of this character. The dictum from the judge of this court, was in a case arising under the Act of 1850, to suppress the trading with slaves, and was an indictment for selling to a slave. The act under which the indictment was framed, altered the common law in relation to the form of the indictment and mode of proof; and perhaps, if the proper case had been before the court, the dictum of the judge would have been the rule established; but suppose it would, in a case of selling to a slave, it does not follow that it would in a case for retailing.
    This is an indictment, under the statute, for selling liquor in less quantities than one gallon; p. 199, art. 9. And the only alteration of the rule, in relation to the form of the indictment, is that contained in art. 11. The act does not change the rule of evidence in cases of this character, but leaves it as at common law; and hence, we conclude, the rule of pleading also remains as at common law, and the plea of autrefois convict was a good plea, and the court below should have given judgment for defendant on issue on that plea.
    For the same reasons, the court below also erred in refusing the instructions asked by defendant, and. granting those asked by the State. '
    We think the court below also erred in suffering the questions to be propounded to the witness Wrenn. This witness was a member of the grand jury which found both bills of indictment. He was first asked if the two bills of indictment were found at the same time. This question is liable to many objections. It did not go to prove the issue before the jury, which was then on the plea of not guilty, and the finding of two or a hundred bills was no proof of guilt; besides, the proof, if competent, could have been made by the record. He was also asked as to what witnesses were before that grand jury, and at what time, — in order to prove that the two bills of indictment were found upon the testimony of different persons. This was also clearly incompetent. It may be true that two bills may be found against the same person for the same offence, and upon the testimony of different witnesses, and it is to guard against this very thing that the plea of former conviction is allowed. If it was necessary to sustain that plea, that both bills should be found at the same time, by the same grand jury, upon the testimony of the same witnesses, we imagine the plea would never be filed in any case.
    
      Burrus and Armistead, on same side.
    
      T. J. Wharton, attorney-general, for the State,
    Relied on an elaborate written argument of R. S. Hudson, district attorney of the fifth judicial district, who prosecuted in the court below. In this argument, Mr. Hudson relied on the following authorities to sustain the decisions of the court below on the plea of autrefois convict. 1 McCord, 855 ; Miazza v. The State, 36 Miss. R. 613 ; State v. McBride, 4 McCord, 332 ; 1 Richardson, R. 90 ; 15 Term. R. 290 ; 21 lb. 91; 9 Met. R. 569; 8 lb. 529 ; 17 Wend. 475; 8 S. & M. 576; 24 Pick. 374; 3 Stark. Ev. 1529 ; 1 Ch. Or. L. 238; 4 Pick. 258; 13 Pick. 539 ; 4 Denio R. 235; 5 How. 590; State v. Combs, 32 Maine; State v. Ainsworth, 
      11 Yerm. 91; 21 Yerm. 91; Smith v. Commonwealth, 7'Gratt. 598; Hite v. The State, 9 Yerg. 357; 1 Leach, 404; 6 Dana, 295; 4 Pick. 252; Noonan v. The State,- S3 Miss. R. 373; 3 Harr. 547 ; 28 Miss. 637 ; 1 Strange, 707; 1 New Hamp. 268; 12 Conn. 54; 1 Swann, 34; 2 Hale, P. C. 244; Miller v. The State, 33 Miss. 360; Hex v. Sheen, 2 0. & P. 634; 1 Green. R. 361; 2 Hawks. 98; 5 Porter, 523; 9 Car. & P. 364; 1 Rice, 1; 1 Comstock, 379 ; 5 Harris, 126; 1 C. & M. 328; 2 Tyler R. 390; 2 Mass. R. 409; 1 Ya. Cases, 164; 1 Carolina Law; Repository, 519; 1 Walker, 208; 1 East: P. C. 522; 12 Pick. 505; 9 East. R. 441; 1 Green. 361; 7 Conn. 54 & 414; 5 .Halst: 293; 7 Dana, 219; 8 Leigh, 721; 7 S. & R. 423 ; 12 Ga. R. 293.
   Handy, J.,

delivered the opinion of the court.

The plaintiff in error was indicted for unlawfully selling and'retailing vinous and spirituous liquors in less quantities than .one gallon without license. The indictment contained two counts; the first charging that the defendant sold the vinous and spirituous liquor to John Hobart, and divers other persons to the jurors unknown ; and the second, that he sold vinous and spirituous liquor to John Hobart, and divers other persons to the jurors unknown, and permitted the same to be drunk on his 'premises.

The defendant pleaded a former conviction for the same offence, and incorporated in the plea a transcript of the record and proceedings in the same court upon an indictment against him, charging him with selling, unlawfully and without license, vinous and spirituous liquors in a less quantity than one gallon, to John Smith, and divers other persons to the jurors unknown;, and also, in a second-count, with selling vinous and spirituous liquors to John Smith, and divers other persons unknown to the jurors, and permitting the same to be drunk in and about his storehouse; to which indictment he appeared and pleaded guilty to that indictment; whereupon judgment was rendered against him. To this plea, a replication was filed on the part of the State, denying that the defendant had been convicted of the same offence charged in this indictment. A demurrer was filed to this replication, which was overruled, and the defendant rejoined, taking issue upon'the replication. The district attorney then asked leave to withdraw the replication, whicb was granted, the defendant excepting, and a new replication was filed, in a more formal manner denying that the conviction pleaded was upon the same offence charged in this indictment, which was done before the case was submitted to the jury. Upon the issue taken upon the defendant’s plea, judgment was then rendered by the court that there was no such record of conviction as set forth in the plea; and it was overruled, and the defendant required to answer over to the indictment.

Upon motion of the district attorney, the court allowed the district attorney to amend the indictment, by striking out the words “ and divers oilier persons to the jurors unknown,” in both counts of the indictment, the defendant excepting. A plea of not guilty was then filed, and upon the trial of that issue, a verdict was rendered against the defendant. A bill of exceptions was taken to the admission of certain testimony on the trial, and also to the refusal of the court to instruct the jury, that the former conviction pleaded by the defendant is a bar to this indictment.

The first error assigned, is the overruling of the demurrer to the first replication. But no prejudice was caused to the defendant by this, inasmuch as the replication was afterwards withdrawn.

The second assignment is, that the court erred in permitting the replication to be withdrawn, and a new one to be filed, after issue joined on the first. This was a matter within the discretion of the court; and its exercise does not appear to have worked any injury to the defendant; for it was attaining the same end that would have resulted if his demurrer to the replication had been sustained. And the rule in the courts in this country is, to allow amendments of pleadings in cases of misdemeanor, though in England, they were only allowed in cases of felony. Commonwealth v. Burge, 3 Penn. 262; Foster v. Commonwealth, 8 Watts & Serg. 77; 13 Mass. 456.

The third error, assigned is, that the court permitted the indictment to be amended, by striking out certain descriptive words from it. This was expressly authorized by the statute, Rev. Code, 615, art. 262.

The next error assigned is, the judgment of the court upon the plea of former conviction, in holding that the record of the conviction set forth in the plea was not a bar to a conviction under this indictment. This ground of error embraces, also, the ninth assignment, relating to the refusal of the instructions asked at the instance of the defendant, that the record of conviction pleaded was a bar to this indictment.

It is undoubtedly true, that, if the offence charged against a party in a second indictment, be identical with an offence charged against the same party in a previous valid indictment, upon which he was tided and acquitted or convicted, that judgment will be a bar to the second indictment; and that it will be presumed that all the evidence that could be adduced in support of the former indictment, was adduced on that trial. Rex v. Sheen, 2 Carr. & Payne, 634 (12 Eng. C. L. Rep. 776); 1 Russ. on Cr. 834 (7th Amer. from 3d Lond. edit. 1853.) But, in order to render a plea of former acquittal, or former conviction, successful, it is necessary for the defendant to show the record of the former proceedings and conviction, and further, to prove the identity of the offence, and also, of the person, charged in the two indictments Archb. Crim. Pl. 4 Amer. edit 85; 1 Ib. by Waterman, 113, note. After proof of these things, the question is, whether the accused could have been convicted, upon any state of evidence, on the former indictment; for, if he could, he must be acquitted on the second. 1 Russ, on Cr., supra.

The question, then, in this case, is, does it appear by the record of the former conviction, set forth in the plea, for that was all the evidence offered in support of the plea, that the offence of which the defendant was convicted on the former indictment, is the same identical offence charged in this indictment ? And it is very clear that the identity of the offence does not appear.

It is argued in behalf of the plaintiff in error, that, inasmuch as the defendant might have been convicted by proper evidence under the former indictment, for selling spirituous liquor without license to John Hobart, he is entitled to the benefit of the presumption that the conviction was for that offence, and should have been acquitted on this indictment. But this proceeds upon a manifest perversion of the rule above stated, in relation to the presumption of law applicable to the former conviction. That rule applies only when the identity of the offence has been sufficiently established by evidence to be adduced by the defence ; and in offences which, in their nature, are capable of repetition, and each repetition of which is a substantive violation of law, there is no legal presumption of identity. Thus, if the former indictment had charged a selling to John Hobart, and the defendant had been convicted upon that indictment, the record of the conviction would not, in presumption of law, have been a bar to the present indictment; because it would not necessarily appear that he was charged with the same identical offence in both indictments. It would have been incumbent on the defendant in such case, as it was incumbent on him in this, to prove by sufficient evidence, in addition to the record of the former conviction, that the- offence of which he was there convicted, was the same identical offence charged in this indictment; and if the plea had been one of former acquittal, and the record had showed it, and the identity of the offence, with that for which he was tried under the former indictment, had been established by sufficient evidence, then he could not be convicted by any evidence upon this indictment, though such evidea«<f was not adduced on the former trial, and might have been sufficient, if adduced, to convict.. Hence,, _if it be conceded that the defendant might have been convicted upon proper evidence on the former indictment, for selling to John Hobart, it would by no means follow, that the offence charged in this indictment must be the same identical offence of which he was then convicted ; for he might have unlawfully sold spirituous liquors to John Hobart at divers times; and if so, upon the reasoning in behalf of the plaintiff in error, a conviction for one of the offences would, by the mere legal operation of the record of conviction, be a bar to an indictment for any other of them, without any proof of the identity of the offence. It is, therefore, manifest that there is no legal presumption of identity arising from the record of conviction, and that it was incumbent on the defendant to prove the identity by sufficient legal evidence, in addition to the record of conviction, in order to make his plea successful. 1 Archb. Cr. Pl. by Waterman, 113, note 1, quoting 2 Russell on Cr.; State v. Cassity, 1 Richardson, 91; State v. Ainsworth, 11 Vermont, 91.

We think, therefore, that the judgment upon the plea, and the action of the court in overruling the defendant’s instructions in relation to it, were correct.

The last ground of error relied on, is that the court allowed the ■witness, Wrenn, who was a member of the grand jury which found the indictment, to testify on the trial.

The first question propounded to this witness to which objection was made, was whether he was one of the grand jury at the time at which both of the indictments against the defendant were found. It is not perceived that any prejudice could be done to the defendant by an answer to this question, whether in the affirmative or negative. The witness was also asked, on the part of the State,, whether the indictment in this case was found at the same time that the indictment against the defendant for selling spirituous liquors to John Smith and others, was found, and whether John Hobart was before the grand jury before the indictment in the last mentioned case was found. To these questions the defendant objected, on the ground that what transpired in the grand jury room is not evidence.

Whatever may have been the rule in relation to the competency of these questions before the passage of the present-code, they are rendered competent by the provisions then, made upon the subject. Rev. Code, 614, Art. 252.

Let the judgment be affirmed.  