We infer that these two indictments were tried together, though this is not directly stated. No objection was made at the trial, or is now made, to this mode of proceeding.
The mere fact that in a former indictment for larceny the description of the things alleged to have been stolen was such that the same evidence which would warrant a conviction upon that indictment might also be sufficient to warrant a conviction of the offences charged in the present indictments, did not of itself raise a presumption that the former offence was the same, so as to support a plea of former acquittal without further evidence of their identity. However it might be in a case where the former descriptions of the articles, and the averments of the time and place of the offence, so far corresponded as to appear on the face of the indictment to relate to the same larceny subsequently charged, the defendant must go further and prove the identity of the offences in a case like the present, where in both, indictments the number of fowls charged to have been stolen, and the time of the alleged larceny, differ from the averments of the former indictment; and in one of the present indictments the averment of place also differs. Commonwealth v. Sutherland, 109 Mass. 342.
We are aware that it has sometimes been considered that the production of such a record makes a prima facie case for the defendant. 3 Greenl. Ev. § 36. State v. Smith, 22 Vt. 74, 77. Bainbridge v. State, 30 Ohio St. 264, 273. But in a case like those now before us we think it better to adhere to the doctrine of Commonwealth v. Sutherland.
The testimony of Burke was plainly insufficient for the defendant’s purpose, and it is not relied on as sufficient in the defendant’s brief.
Exceptions overruled.