The present charge is of a violation of St. 1855, c. 215, § 17; and the charge upon which the defendant was ac-uitted was of an alleged violation of St. 1855, c. 405, § 2. The offences were not identical. The gist of one offence is the keeping a tenement for an illegal purpose, which makes it a nuisance; of the other, the doing certain acts which constitute an offence, to the commission of which it is not necessary that the defendant should have been the keeper of any building or tenement whatever. On the trial of the first indictment, the jury would have been properly instructed to acquit the defendant, if he did not keep the tenement described, however great a number of sales of intoxicating liquors he might have made within it.
The rule has been often stated, “ that unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.” The King v. Vandercomb, 2 Leach, (4th ed.) 708. 2 Hawk. c. 35, §§ 11, 12. 2 Hale P. C. 244. 1 Russ. on Crimes, (7th Amer. ed.) 836. 2 Gabb. Crim. Law, 332. If the gist of the offence, however, is the same, a conviction on one indictment is a bar to the other; 4 Co. 46 b; 2 Hale P. C. 246; 2 Gabb. Crim. Law, 333; and this although the offences charged may differ in degree.
*85In the case at bar, the offence was not different in degree, but in kind, from that of which the defendant had been previously acquitted; the proof of the facts alleged in the second indictment would not have been sufficient for his conviction upon the first; and the reason of his acquittal upon that might very likely have been that he was only guilty, and should therefore have been indicted, for the offence set forth in this.
The other exception, which was not much pressed at the argument, has been overruled by the court in other cases, and is clearly untenable. Commonwealth v. Anthes, 12 Gray,
Exceptions overruled