The appellant was convicted upon an affidavit charging him with the unlawful sale of intoxicating liquor on or about December 1, 1922, at and in the county of Decatur, State of Indiana, to one Arthur Springmire, in violation of § 8356d Burns' Supp. 1921, Acts 1921 p. 736. *Page 366
The affidavit was filed in Decatur county, and a change of venue was taken to the Rush Circuit Court, where the trial was had. The defendant waived arraignment and entered a plea of not guilty and on December 11, 1924, he was tried by the court without a jury. The court found him guilty as charged and assessed his fine in the sum of $200. A motion for a new trial was made and overruled and the court entered a judgment against appellant on the finding, that he be fined in the sum of $200 and pay the costs. From such judgment, this appeal is taken.
The appellant presents but two questions to this court for its consideration. The first is the appellant claims that under § 2252 Burns 1926, § 2091 Burns 1914, he was entitled to a discharge because of the unnecessary delay of the state in prosecuting the case. The record shows that the affidavit under which appellant is prosecuted was filed April 3, 1923. On April 20, 1923, the appellant filed a motion to quash the affidavit. May 3, 1923, the motion to quash was overruled. September 19, 1923, appellant filed a motion for a change of venue from the county. On October 25, 1923, the motion for a change of venue was sustained and ten days given defendant in which to perfect said change. On December 7, 1923, the papers and transcript were received by the clerk of the Rush Circuit Court, Rushville, Indiana. On September 19, 1924, being the seventeenth judicial day of the September term of the Rush Circuit Court, the defendant filed an affidavit and motion for a change of venue from the judge, which motion was sustained. On September 24, 1924, the parties having failed to agree on a special judge, the court presented names from which the prosecuting attorney and the attorney for defendant struck and left the name of Fremont Miller, as special judge to try the case. On December 11, 1924, *Page 367 said special judge, Miller, qualified and assumed jurisdiction in the case. And on the same day appellant filed a motion to be discharged on account of the delay in the trial. The motion to be discharged on account of delay was overruled. The defendant then filed an amended answer of former jeopardy. To the amended answer of former jeopardy, the prosecuting attorney filed a demurrer which was sustained. The rulings of the court on this motion and on this demurrer are assigned as error.
In order for the appellant to take advantage of § 2252 Burns 1926, he must show facts which bring him within the provisions of that statute. Woodward v. State (1910), 174 Ind. 1, 2. 743, 93 N.E. 169, Ann. Cas. 1913A 49. He must show that the delay of which he complains was not caused either directly or indirectly by him or by some act of his. Klein v.State (1901), 157 Ind. 146, 60 N.E. 1036. The delay which entitles the defendant to a discharge under this statute must be a delay by the state or its officers and such delay as was not contributed to by defendant himself. Any delay incident to the taking of a change of venue by defendant cannot be charged to the state. State v. Farrar (1921), 206 Mo. App. 339, 227 S.W. 1078; Ex parte Tramner (1912), 35 Nev. 56, 126 P. 337, 41 L.R.A. (N.S.) 1095; State v. Stilwell (1921), 100 Or. 637, 198 P. 559; See, also, People v. Hotz (1913), 261 Ill. 239, 103 N.E. 1007; State v. Lewis (1911), 85 Kans. 586, 118 P. 59; Barker v. State (1918), 188 Ind. 263, 120 N.E. 593. Appellant has not shown facts that bring him within the statute.
Upon a plea of former acquittal or conviction, the burden of proof is on the defendant to show the identity of the offense, which must be identically the same as the one for which he 3. was formerly prosecuted. It is not always a sufficient showing *Page 368 of a former conviction or acquittal to constitute a bar to a second prosecution, to plead former jeopardy, and produce a record showing it, but the accused must show by other evidence the identity of the offense, with the one charged in the indictment to which the plea is interposed.
The offense for which the appellant is being tried in the instant case is defined in § 8356d Burns' Supp. 1921, Acts 1921 p. 736, being a charge of the unlawful sale of intoxicating 4. liquor. In his plea of former jeopardy, it appears that he was prosecuted for a violation of § 20 of the prohibition law of Indiana, Acts 1917 p. 15, § 8356t Burns' Supp. 1921. This section defines the offense of maintaining a nuisance. The sections of statute under which these actions are brought are entirely different, and it appears upon the face of the plea of former jeopardy that they are not the same offenses, therefore, the court properly sustained the demurrer to the plea. A conviction or acquittal for a violation of § 20 of the prohibition act is no bar to a prosecution for the unlawful sale of intoxicating liquor.
Appellant contends that the court erred in overruling his motion to have the issue of former jeopardy tried separately under the general plea of not guilty. This contention 5. cannot be sustained. The statute provides that the defendant may plead the general issue orally, which shall be entered on the minutes of the court, and under it any matter of defense may be proved. In Clem v. State (1873),42 Ind. 420, 13 Am. Rep. 369, this court held that the statute does not take away from the defendant the right to plead specially any defense which, before that enactment, might have been specially pleaded; and does not impair his right to plead specially in bar the defense of former jeopardy and have the issues joined on such plea tried *Page 369 separately and apart from the question of guilt or innocence of the crime charged in an indictment or affidavit. This decision was followed in Earle v. State (1924), 194 Ind. 165, 142 N.E. 405, where the court held that in such case, he had a right to have the issue of former jeopardy tried separately. Barker v.State (1918), 188 Ind. 263, 120 N.E. 593; McCoy v. State (1923), 193 Ind. 353, 139 N.E. 587. But we know of no authority, and appellant has cited us to none authorizing a separate trial of former jeopardy under the general plea of not guilty.
In Clem v. State, supra, the court said: "In this state, we think it is optional with the defendant, whether he will plead a former acquittal or a former conviction specially or give it in evidence under the general issue as authorized by statute. If he elect to plead such defense specially, then it seems that he is entitled to have that issue tried before he is bound to plead the general issue." The court did not err in overruling appellant's motion to have the issue of former jeopardy tried separately under the general plea of not guilty, after the court sustained a demurrer to the special plea.
Judgment affirmed.
Myers, C.J., not participating.