On Petition for Rehearing.
Comstock, C. J.In passing upon the petition for rehearing in this case, in' view of what is said in the original opinion delivered by Lotz, J., we deem it only necessary to add that, while the provision that no person shall be put in jeopardy twice for the same offense has been incorporated in the constitution of each state of the union, its application and interpretation has not been at all uniform throughout the states. In some instances, in the same state the decisions are confusing.
The expression of the gupreme Court of this gtate upon the question here involved in State v. Elder, 65 Ind. 282, has not been overruled. It was a prosecution for the murder of an unborn child, by the use of means intended to produce a miscarriage. To the indictment the defendant pleaded a special answer of former acquittal. In the opinion, the court deduces three rules from the authorities..
“1. When the facts constitute but one offense, though it may be susceptible of division into parts, as in larceny for stealing several articles of property at the same time, belonging to the same person, a prosecution to final judgment for stealing a part of *530the articles will be a bar to a subsequent prosecution for stealing any other part of the articles, stolen by the same act.
“2. When the facts constitute two or more offenses, wherein the lesser offense is necessarily involved in the greater — as an assault is involved in an assault and battery, or an assault and battery is involved in an assault and battery with intent to commit felony, and as a larceny is involved in a robbery — and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second.
“3. But when the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act.”
And, speaking by Biddle, J., the court says: “We cannot adopt the rule held in some states, that the accused cannot, in any case, be convicted but once upon the same facts when they constitute different offenses, wherein the lesser offense is not involved in the greater, and when the facts charged in the second prosecution would not convict upon the former.”
State v. Elder is cited in numerous cases, among them DeHaven v. State, 2 Ind. App. 376; Smith v. State, 85 Ind. 553; Joslyn v. State, 128 Ind. 160; Davidson v. State, 99 Ind. 366.
It is obvious that in the case at bar the proof necessary to convict of the offense charged in the second affidavit would have been wholly insufficient to convict of the offense charged in the first, and under the *531rule laid down in the above cases the judgment of the lower court should be reversed.
The petition for a rehearing is overruled.