Defendant was convicted and fined in the sum of three hundred dollars in the Circuit Court of Dunklin County, upon an amended information which charged him with a violation of the Local Option Law, in that he unlawfully sold one pint of whiskey in Dunklin County, in which the Local Option Law was in full force and effect. The defendant was charged and arrested under the name of William Linton.
Upon the trial defendant filed a plea of autrefois acquit alleging in substance that he had before been placed in jeopardy for the identical crime. *Page 5
The facts upon which the former jeopardy arises are admitted and may be briefly summarized as follows:
On December 14 1918, the Prosecuting Attorney of Dunklin County filed an information in the circuit court of that county againstWilliam Linton. The information was in two counts, but by some mishap, the reason for which does not appear in this record, the first count charged one William Sharp with the unlawful sale of one pint of whiskey on December 13, 1918, in Dunklin County, in violation of the Local Option Law. The second count charged William Linton with having violated said Local Option Law on December 13, 1918, by unlawfully keeping, storing for and delivering to another person, one pint of whiskey. It is admitted that defendant A.E. Linton was arrested under this first information and gave bond thereunder and when the case was called for trial under the first information on January 14, 1919, defendant A.E. Linton, appeared and answered ready for trial. Thereupon a jury was selected and sworn to try the cause. Shortly thereafter the prosecuting attorney discovered the mistake in the first count of the information and entered a nolle prosequi in said cause and the jury was discharged over the protest, objection and exception of the defendant. Thereafter and on the same day the said prosecuting attorney filed the amended information upon which the present trial was had.
It stands conceded by this record that both of these informations undertook to charge a crime based upon the identical transaction. In other words there is evidence tending to show that defendant did violate the Local Option Law by selling said pint of whiskey in said county and in so doing and as part of the transaction he delivered said pint of whiskey, also in violation of said Local Option Law.
The defendant was granted an appeal to the Springfield Court of Appeals, but that court, in an opinion rendered, transferred the case here on the theory that a constitutional question was involved, in that the cause involved the construction of Article 2, Section 23, of our Constitution *Page 6 which deals with the subject of former jeopardy.
I. The fact that defendant A.E. Linton was named as William Linton in the respective informations does not in any manner affect the question of former jeopardy. It is admitted that defendant A.E. Linton was the person intended in bothWrong information and that he was the person who in fact wasName. arrested and entered his plea in both instances. Whenever a defendant is indicted by his wrong name and does not call the trial court's attention to his correct name before pleading he is to be proceeded against by the name in the indictment. [Section 5113, R.S. 1909.]
II. It stands conceded that the second count of the original information and the amended information each charge a crime growing out of one and the same criminal transaction. In other words, the unlawful delivery charged in the secondFormer count of the original information is but a part of theJeopardy. transaction going to make up the unlawful sale charged in the amended information.
We have no hesitancy in saying that the first count of the original information cannot be used as the basis of a plea of former jeopardy because upon its face it charges no crime against the defendant.
But under the second count of the original information, defendant is charged with an unlawful delivery of this one pint of whiskey. The case was called, the parties announced ready for trial, and a jury was selected and sworn to try the cause and thereafter, over the objection and exception of defendant, the prosecutor entered a nolle prosequi and the jury was discharged.
Under a recent ruling of the Springfield Court of Appeals had the trial proceeded to an acquittal or conviction upon the second count of the original information, it would have been a complete bar to another prosecution for the unlawful sale based upon the same transaction, which forms the basis of the charge in the amended information. [State v. Needham, 194 Mo. App. 201.] *Page 7
We think the above ruling of the Court of Appeals is sound and is in harmony with the greater weight of authority. [Kelley's Criminal Law and Practice (3 Ed.), par. 237, p. 194; 8 R.C.L. 143; 16 C.J. 279.]
If it be true, as above stated, that a conviction or acquittal under the second count of the original information would be a complete bar to a prosecution under the amended information then there is no escape from the conclusion that defendant was placed in jeopardy under the second count of the original information when the jury was sworn. This is the well established rule at common law. [State v. Webster, 206 Mo. 558, l.c. 571; State v. Hays, 78 Mo. 600, l.c. 606; 8 R.C.L. 138-139 and eases cited; 16 C.J. 236 and cases cited.]
III. Although it be conceded that the defendant has been once before in jeopardy for the same offense, is he entitled to be discharged by reason thereof and if so by whatDischarge. authority of law?
Section 23 of Article 2 of the Missouri Constitution is as follows:
"That no person shall be compelled to testify against himself in a criminal cause, nor shall any person, after being onceacquitted by a jury, be again, for the same offense, put injeopardy of life or liberty, but if the jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law." (Italics ours).
We are of the opinion that the above constitutional provision has no real application to the situation now held in judgment. The Constitution says, "nor shall *Page 8 any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life and liberty," etc. The defendant in the instant case was not acquitted by a jury and hence we are unable to see in what manner the constitutional provision can be held to apply. The language of the Constitution is clear and unequivocal and we know of no reason why it should not be construed as it reads.
There seems to have arisen some confusion on the question of former jeopardy and our own reports are not entirely free from criticism along this line. After carefully reviewing many of the cases upon the subject we are led to the belief that this confusion arises by reason of failing to call to mind that the law of former jeopardy first arose under the common law. (8 R.C.L. 134-135), and that in some state constitutions and in the Federal Constitution the old common law rule that no personshall for the same offense be twice put in jeopardy of life orlimb, was incorporated in its entirety, while in other state constitutions, notably that of Missouri, apparently only a portion of the common law on the subject was incorporated (and thereby removed from legislative interference).
But it goes without saying that the common law as to former jeopardy is in effect in this State, unless the same has been changed or modified by the Constitution or by statutory enactment. [Section 8047, R.S. 1909.] The fact that a portion of the common law on this subject was written into our Constitution should certainly not be given the effect of having repealed the remaining portion of the common law on the subject unless the constitutional provision should be found to be in conflict therewith. [Sec. 8047, supra.]
The common law general rule applicable to the situation now held in judgment was quoted with approval by this court from Cooley on Constitutional Limitations in the case of State v. Webster, 206 Mo. 558, l.c. 571, as follows: *Page 9
"A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause."
There are certain well known exceptions to this general rule and a large number of them will be found discussed in the learned opinion by FARIS, J., in State v. Buente, 256 Mo. 227, l.c. 241; but none of the exceptions are applicable to the case at bar. Some of these exceptions are exceptions recognized by the common law and others are exceptions created by statute, as was the situation held in judgment in the case of State v. Buente, supra. The statutory exception in the Buente case was held not to conflict with the above mentioned provision of our State Constitution, which is further persuasive proof that our constitutional provision was not intended to supply all the law on the subject, but only to save from legislative change that portion which was permanently preserved by the constitutional mandate, leaving the Legislature free to act upon such portion of the law of former jeopardy as was not included in the constitutional provision.
We find no statute in this State which changes or conflicts with the above mentioned general rule of the common law applicable to the facts in the case at bar. That being true the rule should be considered as remaining in full force and effect. Applying said rule to the facts held in judgment in the case at bar it clearly appears that defendant was placed in jeopardy under the second count in the original information and that the same constitutes a bar to a prosecution under the amended *Page 10 information. Such being the case defendant's plea of former jeopardy should have been sustained.
It therefore follows that the judgment must be reversed and the defendant discharged. It is so ordered. All concur.