This is a conviction for selling a cigar to one Jim Dixon on Sunday.
To the information, the defendant pleaded in effect former jeopardy by reason of the fact that he had been indicted for the same offense, and that said indictment had been certified from the district court of Bobertson county to the county court of said county, and *347that on the 5th day of March, 1885, the case was called for trial; that both parties announced ready for trial; and that, after the jury was impaneled and sworn, and all of the evidence introduced, the county attorney moved to enter a nolle prosequi to said case; to which the defendant objected, and, over the objection of the defendant, the court allowed the said county attorney to nolle prosequi the same, and that the prosecution was dismissed.
The indictment nolle prosequied charged that the defendant was a dealer in the sale of cigars, drugs, etc., the same being a lawful business.
The information describes the defendant as being a merchant and grocer, and a trader in a lawful business.
The evidence shows but one transaction, to wit, the sale of three cigars to Jim Dixon on Sunday.
The first question presented is, could the defendant be legally convicted under the allegations of the indictment for selling the cigars to Dixon on Sunday? The indictment charges that the defendant was a dealer in the sale of cigars and drugs, the same being a lawful business. Mow, this indictment does not charge that the defendant was a merchant, grocer, or dealer in wares and merchandise, or a trader in any business, but that he was a dealer in the sale of cigars and drugs. Is the allegation that the defendant was a dealer in the sale of cigars and drugs, the same being a lawful business, equivalent to a charge that he was a trader in a lawful business ? We think so, and hence, under the allegations of the indictment, the defendant could have been convicted of the offense charged in the indictment.
Do the principles of jeopardy apply to misdemeanors? Or, in other words, after the parties have announced ready for trial upon a good and sufficient indictment, the jury being impaneled and sworn, and the plea entered, can the State, in misdemeanor, nolle qorosequi the case, and afterwards prosecute for the offense charged in the indictment, nolle pjrosequied?
It is well settled that this cannot be done in felony cases. How as to misdemeanors? We are not aware that this question has ever been passed upon by the supreme court of this State.
However, upon this subject Mr. Bishop says: “The reader has observed in what words this constitutional provision is expressed, namely, that the offender shall not be twice put in jeopardy of “ life or limb ” (Federal Constitution), the construction of which words is that properly the rule extends to treason and all felonies — not to misdemeanors. Yet, practically and wisely the courts have *348applied it to misdemeanors also.” And in McCauley v. The State, 26 Ala., 135, Judge Rice discusses this question elaborately, and, as we think, conclusively, showing that the constitutional provision which protects the citizen from being twice put in jeopardy applies to misdemeanors as well as felonies.
In regard to the defendant’s special plea, the court charged the jury as follows: “The jury are charged that the evidence introduced fails to sustain the defendant’s plea of former acquittal, and that the judgment of the court, entering a nolle prosequi of the former case at the March term of this court, is not an acquittal, and you will not consider the defendant’s plea of former acquittal.”
We suppose this charge was inspired by a supposed variance between the indictment and information; that is, that the indictment did not contain the proper allegations upon which to convict the defendant of selling to Dixon the cigars, and that, therefore, the nolle prosequi of a case under a bad indictment could not, under any circumstances, constitnte a bar to a subsequent prosecution for the same offense.
We hold, however, that under the indictment nolle prosequied the defendant could be convicted of the offense charged in the information, and hence, if the plea was otherwise established by proof, it should have prevailed.
Was it established by the evidence? Beyond any sort of doubt. Dixon swears that it was the same Sunday and the sazne purchase. Of this there is no question. We are of the opinion that the court ez-red in the chai'ge above quoted, and that the special plea of the defendant should have been subznitted to the jury with instructions to pass upon its truth just as is required by the Code.
Because of the error in the charge of the court, and because the defezidant’s plea of jeopardy was withdrawn from the consideration of the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered June 3, 1885.]