Field, C. J. and Baldwin, J. concurring.
The defendant was indicted for an assault with intent to inflict *335bodily injury. Upon the trial it turned out that there was a misnomer of the party injured, and the District Attorney thereupon moved that the indictment be discharged and the case referred to another grand jury. This motion, which was made after the introduction of a witness for the prosecution, was granted by the Court, the defendant excepting. Another indictment was found, and to this indictment the defendant pleaded a former acquittal, predicated upon these proceedings.
It is unnecessary for us to determine the propriety of the action of the Court in discharging the first indictment, and referring the case to another grand jury. Even a verdict of acquittal under that indictment could not have availed the defendant, and admitting that the proceedings amounted to an acquittal, no greater effect can be given to it than that resulting from a verdict under similar circumstances. The statute provides that “ where the acquittal is for a variance between the proof and the indictment, which may be obviated by a new indictment, the Court may order the detention of the defendant, to the end that a new indictment may be prepared,” etc. (Wood’s Dig. 303, sec. 431.) We see nothing in this provision in conflict with the provision of the Constitution, that “ no person shall be subject to be twice put in jeopardy for the same offense.” It would be a contradiction in terms to say that a person was put in jeopardy by an indictment under which he could not be convicted, and it is obviously immaterial whether the inability to convict arise from a variance between the proof and the indictment, or from some defect in the indictment itself. If the variance be of such a character that a conviction is legally impossible, the party charged is not in jeopardy within the meaning of the Constitution, and an acquittal under such circumstances cannot be pleaded in bar to a second indictment. There is no doubt that the variance in this case was material and fatal, and the plea of a former acquittal is not sustained.
Judgment affirmed.
A rehearing having been granted and the case resubmitted, the opinion of the Court was delivered by Cope, J.—Field, C. J. and Baldwin, J. concurring.
*336In our former opinion in this case we overlooked the two hundred and forty-third section of the Criminal Practice Act, which reads as follows: "When an offense involves the commission, or an attempt to commit private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured, shall not be deemed material.” It is contended by the defendant that the effect of this section was to render the variance between the proof and the indictment immaterial; but we think that such is not the proper construction. It is only where there are other circumstances sufficient to identity the offense, that the statute was intended to operate. There are no such circumstances in this case, and to hold that the defendant could have been convicted notwithstanding the variance, would be to hold that he might have been convicted of an offense different from that charged in the indictment.
Judgment affirmed.