In his motion for rehearing, appellant challenges the conclusion that the question presented in the Missouri case of State v. Keating, 122 S.W. 699, is the same as that before us on this appeal. We think the original opinion correctly discussed the case.
If the finding of the jury under the first indictment constituted an acquittal of appellant of the offense charged in the second count of that indictment and, further, if that be the charge upon which he was subsequently convicted, then jeopardy attached and his plea should be sustained. The primary offense is the same in both counts of the first indictment. The first count was fatally defective, as held in the former appeal, because it failed to contain all of the necessary allegations. The first count charged one prior offense and the second count charged two. It appears, therefore, that the jury's finding of guilt under the first count is not inconsistent with the guilt of the primary offense in the second count and cannot be so construed as to hold that it amounted to an acquittal under said count. He could have been found guilty under the first count and still be guilty under the second. In fact, a finding of guilt under the first count of necessity made him guilty of the primary offense under the second.
Furthermore, the indictment involved in the case now before us is only a correction of the bad count in the first indictment and it is merely incidental that it has the same language as that part of the second count of the first indictment charging the primary offense. In the state of the record, we think the plea was not available and the original opinion correctly so held.
Appellant's motion for rehearing is overruled.