
    The People vs. M’Gowan.
    A trial and acquittal for robbery, is a bar to an indictment for larceny, where the property alleged to have been taken is the same, 
    
    The rule in such case is, that if the former indictment might have been sustained by proof, which would be sufficient to sustain the second indictment, a prima facie case is made out for the prisoner by the production of the record of acquittal, and without further proof on the part of the prosecution, lie is entitled to an acquittal.
    On a plea of autre fois acquit, where the only issue is the identity of the offences, a variance between the record of acquittal and the indictment under which the trial is had, in the number of articles charged to have been taken and in the names of the owners of the property, will be disregarded, when no proof is offered on the part of the prosecution to show that the offences are in fact different.
    Eviden e, as well on the part of the prosecution as on the part of the defence, is admissible as to the diversity or identity of the offences.
    Error from the Albany oyer and terminer. The defendant was indicted at the Albany general sessions, in June, 1837, for grand, larceny, in stealing one watch of the value of $110, one watch of the value of §65, one watch of the value of §45, one gold watch of the value of §110, one gold watch of th« value of §65, and one silver watch of the value of $45, the property of one Alexander M'Harg. The prisoner pleaded, that at the Albany general sessions, held in March, 1837, he was indicted for robbery, being charged with entering a shop, putting one James De Forrest in bodily fear, and violently taking and feloniously stealing one gold watch of the value of §110, one silver watch of the value of $65, and one other silver watch of the value of $45, the property of De Forrest; and also with entering the shop, putting De Forrest in bodily fear, and violently taking and feloniously stealing one gold watch of the, value of $110, one silver watch of the value of $65, and one other silver watch of the value of $45, the property of Alexander M'Harg; that he was arraigned and pleaded not guilty to the said indictment; that the issue thus joined, was tried at the Albany oyer and terminer, in April, 1837, and that he was duly acquitted by the verdict of a jury. The prisoner then averred his identity and the identity of the offences charged in the two indictments, and prayed to be dismissed. The district attorney put [387] in a replication, denying the identity of the offences, and upon the issue thus joined the prisoner was tried. The record of acquittal set forth in the plea was produced, and the counsel for the prisoner insisted that the prisoner was entitled to a verdict in his favor; but the presiding judge charged the jury, that to entitle him to a verdict, it was necessary that the evidence to support the last indictment would have been sufficient to support the first indictment, and that as the proof to support a charge of larceny was not sufcient to sustain a charge of robbery, the offences charged in the two indictments were not the same, and consequently the acquittal on the first indictment was no bar to the conviction on the second, and that it was their duty to find the prisoner guilty. The jury found accordingly. The prisoner having excepted to the charge of the judge, sued out a writ of error.
    
      R. P. Bates, for the prisoner.
    S. Beardsley (attorney-general), for the people.
    
      
      
         Constitution of N. Y. Art. 1, 5 6 ; 2 R. S 702, § 25. The former acquittal or conviction must have been for the same identical act and crime. 4 Black. Com. 336 ; 1 Russel on Cr. 836, 831. Arch. Cr. PL 87. King v. Taylor, 3 Barn. & Cress. 502. .1 Chit. Cr. Law, 452. 12 Pickering, 496. 1 Park. Cr. R. 338, 445. Lehman v. The People, 1 Corns. 379.
      A former trial and sentence can not be given in evidence under the plea of not guilty. People v. Benjamin, 2 Park. Cr. R. 201. A conviction before a court of special sessions, must be proved by the record of conviction or a certified copy thereof, if a record has been filed, and secondary evidence can not be received unless it is shown that no record has been filed. Id. ibid. Under what circumstances the putting a defendant upon his trial for felony and afterwards withdrawing a juror and arresting the trial, will bar a further prosecution upon the same indictment. Klock v. The People, id. 676. On the subject generally, see Barb. Grim. Law, 344-5-,
    
   By the Court,

Cowen, J.

The first indictment, though for a robbery, involved the question of simple larceny, of which the prisoner under that indictment, might have been convicted. So far, therefore, as the nature of the offence is concerned, the plea was valid; the prisoner had, within the issue, been tried and acquitted of the larceny. The rule laid down by the court of sessions, applies; for the same proof would sustain either indictment, to the extent necessary for the purposes of the plea.

In this respect, no proof was necessary on the part of the prisoner. The replication admitted the former indictment and acquittal, and took issue only upon the identity of the offences. In such case it is well settled, that where the former indictment might have been sustained by showing the offence charged in the second, a prima facie case is made out for the prisoner. It then lies with the people to show b}' evidence aliunde, that the offences are substantially different in point of fact, or to give some other [388] answer.

In the case before us, it is said for the people, that the two offences differ in respect to the identity of the property; the former indictment speaking of six gold and silver watches, three of which belonged to De Forrest and three to M’Harg; whereas, now, it is charged that all the six, viz: three watches, and three gold and silver watches, belonged to the latter; and that the prisoner admits by his plea, that he stole these six watches which belong to M’Harg. We can not but see, however, that the difference is mere matter of form; and that proof might have been received, at the last trial, of the same facts which would have been sufficient to sustain the indictment upon the first. The admission in the plea is not of every formal allegation which the counsel for the 'people may choose.to insert in a second indictment. It admits the substance, which is grand larceny of some watch belonging to MTIarg, and that is just such an offence as might have been shown upon the first trial. There is no such substantial conllict in the indictments as to preclude the common averment that the offences are one and the same, and not other or different.

The replication thus admitting a former trial and acquittal upon an indictment sustainable by the same proof which would be receivable under the second, the prisoner was, as his counsel insisted, prima facie entitled to a verdict. It lay with the counsel for the people to prove their case, and then to show by further testimony, that it was not the case before presented, nor which might have been insisted upon at the trial for the robbery.

At all events, the prisoner was entitled to go farther on his part, and show that, in truth, the former trial was concerning a robbery, or a larceny of MTiarg’s watch. This would have exhibited an offence covered by the last indictment, and precluded all farther inquiry concerning it, until the people should reply by contradictory proof, or by setting up, on new proof, a really distinct and untried offence. But the ruling of the court below cut the prisoner off from all farther proof. The whole case was thrown upon a sub-[389] stantial difference between the offences involved in the two indictments, appearing on their face.

The great object in respect to that class of pleas in bar to which this belongs is to sec in the first place, whether the former and the present declaration or indictment are of sufficient capacity to let in the same cause of action or offence under each. If so, the former trial is, prima facie, always a bar. The parties should, however, be allowed free scope for inquiry, as to what ■was, in truth, the substantial matter before litigated. If that were the same, and the case was tried upon its merits, the decision becomes conclusive, especially in a criminal proceeding.

The verdict at the general sessions must be set aside, and a new trial had in that court.  