1. It is a rule of the common law, founded on a plain principle of natural justice, that no person shall be twice put in jeopardy of punishment for the same offense. This rule is embodied and perpetuated in both the federal and state constitutions. One application of the rule is that a regular conviction or acquittal upon a prosecution for a crime, if pleaded, is a bar to a second prosecution for the same offense.
But if one liable to be charged criminally, by fraud procures himself to be acquitted or convicted of the offense, such acquittal or conviction is no bar to another prosecution therefor. Whart. Grim. PI. § 451. Bishop, in his *403treatise on Criminal Law, says: “If one procures himself to be prosecuted for an offense which he has committed, thinking to get off with a slight punishment and to bar any future prosecution carried on in good faith, if the proceeding is really managed by himself, either directly or through the agency of another,— he is, while thus holding his fate in his own hands, in no jeopardy. The plaintiff state is no party in fact, but only such in name. The judge is imposed upon, indeed, yet in point of law adjudicates nothing. . . . The judgment.is therefore a nullity, and is no bar to a real prosecution.” Yol. 1, § 1010. It is probable, however, that if in such collusive and fraudulent prosecution the full penalty of the law for the offense has been imposed and paid or suffered by the accused, it would be a bar toa second prosecution.for.the same offense.
On this subject the learned circuit judge instructed the jury as follows: “ If the defendant in this case procured the complaint in the case, which has been pleaded in bar, to be made by a person acting in collusion with him, or with the attorney of the defendant with the defendant’s sanction, and with the expectation upon the part of the defendant of deriving some benefit .from it by getting off better, than by another prosecution, or thinking to avoid a prosecution which he thinks may be more serious to him, or with a design to avoid another prosecution the result of which- he thinks might be more serious to him, then it is no bar.” We think this instruction is a correct statement of the law. The testimony amply supports the verdict of the jury in that behalf. Thus far we find no error in the record.
2. The last sentence of the verdict — “ We therefore find the de'fendant guilty ” — is a mere conclusion- of law from the finding that the prosecution and conviction before Justice Allen was collusive and fraudulent. It is not in any correct sense a verdict of guilty on the merits, and has no significance in the determination of the case. It was but a *404repetition of the ruling by the court on the trial, to the effect that a conviction of the offense charged must neces-. sarilv result from a verdict overruling the plea of autrefois conviet. This brings us to inquire whether the plaintiff in error was properly convicted of the offense charged, without a trial of the issue of his guilt or innocence, when his plea of not guilty stood upon the record.
In England the rule adopted by the circuit court seems to prevail in prosecutions for misdemeanors, and it has been followed to a limited extent in this country; but the great weight of American authority is against it. We do not tbink the English rule rests upon any sound principle. Why a man should be held to have conclusively admitted himself guilty of an offense for which he is being prosecuted, merely because he avers that he has theretofore been prosecuted for the same offense and acquitted or convicted thereof and fails to prove it, we cannot comprehend. The verdict against him on such special plea is simply that he was not theretofore so acquitted or convicted of the offense charged. By what rule of logic or legal presumption can it be said that, because he asserts an acquittal or conviction therefor, which the jury negatives, he conclusively admits his guilt of the offense charged, or must be conclusively presumed guilty thereof? The plea of guilty before Justice Allen may perhaps be proved, when the case is tried on the merits, as an admission of the accused, to go to the jury for what it is worth like any other admission of a party against his interest; but to allow the state to repudiate the proceeding before Justice Allen, and treat it as a nullity, and still hold that the guilt of the accused is conclusively established by such proceeding, would be most illogical and unjust.
Take another view of the question. The rules governing the two pleas of autrefois acquit and autrefois oormiet are the same. State v. Parish, 43 Wis. 395. Now, suppose one criminally charged pleads that he has theretofore been tried *405for the same offense and acquitted. The state takes issue on the plea, and the jury find that he has not been so tried and acquitted. The utter injustice, as well as absurdity, of convicting the accused on these proceedings, without further inquiry of the crime charged, is obvious. Such proceedings fail to establish a single element of guilt. Yet the English rule demands and upholds such convictions. We adopt the opposite rule, and hold, with most of the courts of this country, that the court erred in pronouncing judgment of conviction without a trial of the issue made by the plea of not guilty. On this subject, see "WEart. Crim. PI. §§ 420, 421, 486, and the numerous cases there cited.
See'note to this case in 32 N. W. Rep. 226.— Hep.By the Court.— The judgment of the circuit court must be reversed; but inasmuch as the issue on the special plea lias been regularly determined, the cause will be remanded for a trial of the issue made by the plea of not guilty, unless different pleadings be interposed by leave of that court which will render a trial unnecessary.