The opinion of the court was delivered by
Collamer, J.There is no ground for saying that this of-fence was within the statute of limitations, and that is abandoned by the respondent’s council. By our statute, the selling of spirituous liquors by small measure without license is penal, and, by express statute, each act of selling is a distinct of-fence, and incurs a distinct penalty. Stat. of 1830, sect. 2. It follows, as a necessary consequence, that, for each act of selling, the offender may be prosecuted by a separate indictment or information, or by different counts in the same, as may be done for any other crime or misdemeanor. When a man is shown guilty of an offence, hé may defend himself by the plea of autrefois convict, as was attempted in this case. To sustain this defence, the respondent must show that he has been legally convicted of the same offence for which he is now prosecuted. To this end, he must produce the record of conviction, and must then produce substantive testimony to show to the jury, that it was identically the same offence as the one for which he is now prosecuted. In this case the respondent was shown guilty of a certain act of selling. He showed a conviction of an act of selling, which conviction was after the one now proved, but he offered no testimony tending to show it was the same act. The former indictment was for an act of selling, alleged to be to a different person. This tended to show it was a different act. The respondent seemed to insist, that if the offence was committed before the former indictment, that was a bar. The court very correctly decided the law to be otherwise, and, most clearly, the respondent did not show that the offence, for which he was convicted, was the same as that now shown against him.
Sentence pronounced.