(dissenting). The opinion which has been handed down in this case, and from which two members of the court have dissented, maintains that section 1055 of the Revised Statutes* which was originally Act 123 of 1858, is not consistent with the constitutional guaranty that a person’s life or liberty shall not be put in jeopardy twice for the same offense, and is therefore not yalid legislation.
This statute has been in force nearly three-quarters of a century. It has been cited several times by this court, as the law; and never has it been suggested that the law was in conflict with the constitutional guaranty against the putting of a person’s life or liberty in jeopardy twice for the same offense. Even in this case the very learned and zealous district attorney, who argued the case himself, and filed two printed briefs, contending that the statute was unconstitutional on two other grounds (which were not well founded), has not contended that the statute was unconstitutional or invalid for the reason for which he has won his case.
While this case is/pending on an application for a rehearing, I beg each member of the court to analyze the statute again. Here it is, viz.:
“Sec. 1055. If, upon the trial of any person for any crime or misdemeanor, it shall appear that the facts given in evidence amount in law to some other offense, he shall not by reason thereof be entitled to be acquitted of the offense charged; and no person tried for such crime or misdemeanor shall be liable to be afterwards prosecuted for such other offense on the same facts, unless the-court before which such trial may be had shall think fit in its discretion to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for the offense shown to have been committed; in which case such person may be dealt with in all respects as if he had not been put upon his trial.”
It is not disputed that, as the statute, in terms, applies as well to misdemeanors as to felonies, it is applicable as well to cases tried by the judge without a jury as to cases tried by a jury.
And it is virtually conceded, in the opinion from which I dissent, that the statute, if valid, would fit this case exactly.. The defendant was tried on a bill of information accusing him of having manufactured whisky for beverage purposes, and was acquitted. The evidence showed that he had had the whisky in his possession at the time and place alleged, but there was no proof that he had made it. On the third day after the trial and acquittal, and on the evidence that was adduced at the trial, the district attorney filed another bill of information accusing the defendant of having'had the same whisky in his possession for beverage purposes, at the same time and place and on the occasion mentioned in the first accusation.
To the latter bill of information, the defendant pleaded autrefois acquit; and, in a *866very lengthy document, he pleaded also that, having been tried and acquitted of the one offense which the state had seen fit to accuse him of, he could not be subject to another prosecution, for another offense in name, based upon the same facts which had been proven on the trial had, and on which the other prosecution had been founded.
This latter plea, founded upon section 1055 of the Revised Statutes, is not, technically, .the same as the plea of autrefois acquit founded upon section 9 of article 1 of the Constitution, forbidding the state to subject a person’s life or liberty to jeopardy twice for the same offense.
During the argument of the plea of autrefois acquit, etc., the judge announced from the bench that, if the same facts that were proven on the trial on the charge of manufacturing the whisky should be proven on a trial-of the defendant on the new charge of ‘having had whisky in his possession — if there should be no more and no less evidence than there was in the former trial — he would find the defendant guilty. The judge overruled the plea of autrefois acquit, as well as the plea founded upon section 1055 of the Revised Statutes; and, on the same evidence that had been adduced on the trial for the offense of manufacturing intoxicating liquor, the defendant was convicted of having had the same and identical liquor in his possession for beverage purposes, at the same time and place and on the occasion referred to in the first prosecution.
I respectfully submit that the author of the opinion from which I have dissented has misconstrued the language of the statute in question. He has construed it to mean — if I understand him right — that a person charged with a crime or misdemeanor may have his life or liberty put in jeopardy twice for the same offense, if the judge, even against the defendant’s protest, sees fit to enter a mistrial instead of allowing a verdiet to be rendered, when the judge believes that the facts given in evidence amount in law to some other offense. I quote from the third page of the typewritten opinion, viz.:
“It will be observed from the quoted section [1055] that, if, upon the trial of one accused of a crime or misdemeanor, it shall appear that the facts given in evidence amount to some other crime, this will not entitle the accused to be acquitted of the offense charged, provided that the judge in the exercise of his discretion discharges the jury from giving a verdict in'the case, and further directs th^t the accused be indicted for the offense shown to have been committed, and, if the judge does so, that the accused may be dealt with in all respects as if he had not been put on trial, but that, if the judge does not withdraw the case from the jury, the accused cannot be tried for the other offense on the same facts,” ,
The mistake of the learned justice, I say with great respect, is in believing that the statute leaves it possible for a judge to put a person’s life or liberty in jeopardy twice for the same offense.. What the statute says is that a person shall not, under any condition, be tried twice for the same offense in name. That is what the Constitution vouchl safes. But the statute goes further, and says that a person shall not be tried twice for two separate or different offenses in name, based upon the same or identical facts, unless, on the first trial, the judge, in his discretion, seeing “that the facts given in evidence amount in law to some other offense,” discharges the jury .from giving a verdict, etc. If the judge does that, whethef the defendant protests or not, he is acquitted of the offense first charged, but, on an indictment “for the offense shown to have been committed,” he “may be dealt with in all respects as if he had not been put upon his trial.”
Now let us, even at the risk of making the task irksome, analyze the languagé of the statute again. It contains two distinct statements. The first statement is that, if, on the trial of a person accused of any crime *868or misdemeanor, the facts given in evidence amount in law to some other offense than the oft'ens'e charged, the defendant shall not “by reason thereof’.’ — or for that reason alone — be entitled to be acquitted of the offense charged. The reason is obvious. The facts given in evidence in any case might amount in law to some other offense than the offense charged, and yet warrant a conviction for' the offense charged. Hence, the second statement in the statute is that, when the evidence shows that another offense than that charged was committed, it is left to the discretion of the judge either to stop the trial and prevent a verdict, and thereby acquit the defendant of the offense, charged, or to let the trial proceed to a verdict, and thereby prevent the defendant’s being tried again on the other charge, founded upon the same facts. Surely, therefore, the statute is not violative of the constitutional guaranty against a person’s being tried twice for the same offense. The last clause in the statute, “in which cáse such person may be dealt with in all respects as if he had not been put upon his trial,” means, of course, that, in case the judge shall have discharged the jury and prevented the rendering of a verdict for the offense charged, and shall have directed that the defendant “be indicted for the offense shown to have been committed,” he may be dealt with, under the new indictment, as if he had not been tried at all.
On pages 4 and 5 of the typewritten copy of the opinion from which I dissent it is said that the Constitution forbids the judge to withdraw a case from the jury, or prevent a verdict from being rendered, after the defendant has been put in jeopardy, either by the reading of the indictment or, when that is waived, by the introduction of any evidence. In support of the statement, the author of the opinion quotes liberally from the case of State v. Robinson, 46 La. Ann. 769, 15 South. 146. The ruling in that case was — and it has been the same in every case — not that the judge was forbidden to discharge the jury, over the defendant’s protest, after he had been put in jeopardy, but that the effect of the judge’s discharging the jury under such circumstances was to acquit the defendant of the crime charged, and forbid another prosecution for the same offense. The same effect is had now, under section 1055 of the Revised Statutes. If the judge discharges the jury, the defendant stands acquitted of the crime charged, and he shall never be prosecuted again for that crime. That is what the statute says. And that is a'll that the Constitution guarantees. It is true, the defendant may be tried on some other charge, growing out of the same facts, if the judge has discharged the jury and prevented a verdict from being rendered for the crime charged. But, before this statute of 1855 was enacted, the defendant in any case was subject to prosecution a second time, on another charge based upon the same facts, whether the judge did or did not discharge the jury and prevent a verdict in the first prosecution. State v. Williams, 45 La. Ann. 936, 12 South. 932; State v. Lee, 46 La. Ann. 627, 15 South. 159; State v. Bright, 105 La. 345, 29 South. 903.
It is said four times in the'Opinion from which I dissent, twice on the fourth page, again on the sixth page, and again on the seventh page, that the judge has not the power to withdraw a case from the jury or prevent the rendering of a verdict after the trial has commenced, and “over the protest of the accused.” Of course, that does not mean that the accused can by his protest compel the judge to let the case proceed to the rendering of a verdict. It means that, if the accused protests against the discharging of the jury after his life or liberty has been put in jeopardy, the effect of the judge’s discharging the jury is the same as an ac*870quittal, and the defendant shall not be tried again for the same .offense. That is also true under section 1055 of the Revised Statutes. But the defendant does not have to protest to preserve his immunity from another prosecution for the same offense. Why should he protest, when the statute says that the effect of the judge’s withdrawing the case from the jury, or preventing the rendering of a verdict, is the same as an acquittal of the offense charged.
The district attorney in his brief — according to my understanding — argues that this statute (section 1055, Rev. Stat.) was intended to apply only to a case in which an acquittal of the offense charged would bar a subsequent prosecution for the other offense, disclosed by the evidence introduced on the trial for the offense first charged. That cannot possibly be. Why should the judge ever withdraw a case from the jury, or present the rendering of a verdict, in a case where the evidence shows that the defendant committed another offénse than the offense charged, if that other offense of which the defendant is guilty is an offense for which he can be convicted under the indictment for for the offense charged? The learned district attorney goes on to illustrate thus:
“To illustrate further: The statute in question was not intended to apply in a case where the defendant is indicted for the larceny of goods as belonging to A and it appears to the trial judge that the defendant was guilty of stealing the goods, but that they were the property of B, because an acquittal of the larceny of goods as belonging to A cannot be pleaded in bar of an indictment for the larceny of goods belonging to B.”
The reason why an acquittal of larceny of goods alleged to belong to A is not a bar to a subsequent prosecution for larceny of goods alleged to belong to B is that, in a prosecution for larceny of goods belonging to A, the defendant cannot be convicted if the evidence shows that the goods belonged to B. If, in such case — in a prosecution for larceny of goods belonging to A — the defendant could be convicted on proof of his having stolen the goods belonging to B, the statute would not be applicable, because there would be no sqnse in discharging the jury, instead of letting them render a verdict, if the evidence showed that the defendant stole the goods belonging to B.
In State v. Fields, 117 La. 929, 42 South. 428, the defendant was convicted of having embezzled a mule. He had been tried and acquitted on an indictment charging that he had stolen the mule, in the. same transaction referred -to in the prosecution for embezzlement. He pleaded autrefois acquit in bar of the prosecution for embezzlement. The district judge overruled the plea; but this court reversed the ruling, because, under section 1056 of the Reyised Statutes, the defendant might have been convicted of embezzlement under the indictment for larceny; hence the acquittal was an acquittal of both crimes; and this court said, in effect, that even if the defendant could not have been convicted of embezzlement in a prosecution for larceny, he would be protected against the subsequent prosecution for embezzlement by section 1055 of the Revised Statutes, declaring — and now I quote from the decision — viz.:
“That if, on the trial for any crime, it appears that the facts given in evidence amount in law to some other offense, the defendant shall not be prosecuted for such other offense on the same facts, unless the judge upon such trial shall discharge the jury from giving a verdict.”
The opinion in the case is very brief, and, if its language is taken literally, it might be erroneously construed to mean that the judge should have discharged the jury from rendering any verdict in the prosecution under the indictment for larceny, in order, to preserve the state’s right to prosecute the defendant for embezzlement. Of course, that interpretation would be nonsensical, in view of the court’s having recognized that, *872under section 1056, Rev. Stat., the defendant might have heen convicted of embezzlement in the prosecution for larceny. There would have been no sense in discharging the jury in the first trial, instead of instructing them that they might render a verdict for embezzlement, there and then. In fact, it was the duty of the judge to instruct the jury with regard tó the different verdicts which they might have rendered.
In State v. Hill, 122 La. 711, 48 South. 160, the defendant was prosecuted on a bill of information charging that he had shot one Ed. Reynolds with a dangerous weapon, to wit a pistol, with intent to murder. The defendant pleaded, in bar of the prosecution, that he had already been prosecuted on a charge of having willfully assaulted the same Ed. Reynolds by willfully shooting at him at the same time and place and in the same transaction referred to in the subsequent bill of information, and that, on the former trial, after the evidence had been adduced and the argument of the case had been concluded, the district attorney, with leave of court, had entered a nolle prosequi. The district judge overruled the plea; and this court affirmed the ruling, under authority of section 1055, Rev. Stat., viz.:
“Assuming that the two prosecutions were based on the same evidence, the discharge of the jury from giving any verdict upon the former trial preserved the right,of the state to prosecute for the offense shown to have been committed. Section 1055, Rev. St. 1870.”
In State v. McGarrity, 140 La. 436, 73 South. 259, this court again, referred to section 1055 of the Revised, Statutes as valid legislation, viz.;
“Rev. St. § 1055, provides that if, upon trial of any person for any crime or misdemeanor, it shall appear that’ the facts given in evidence amount in law to some other crime, he shall not be entitled to be acquitted of the offense charged, and no person tried for such crime or misdemeanor shall be liable to be afterwards prosecuted for such other offense on the same facts, unless the trial court shall discharge the jury from giving any verdict and direct' such person to be indicted for the offense shown to have been committed, in which ease he may be dealt with in all respects as if he had not been put upon his trial. Held, that the section has application only to cases where verdict has not been set aside at accused’s own instance; for only when, under Const, art. 9, can the plea of once in jeopardy avail;”
I do not see how we can possibly maintain that the constitutional guaranty against a person’s being tried twice for the same offense prevents the Legislature from going a step further, and laying — in accord with the spirit as well as the letter- of the Constitution — that a person shall not be tried twice on the same state of facts, for offenses different in name, unless the judge, in the first trial, dicharges the jury from rendering a verdict, and thereby acquits the defendant of the offense' first charged, in order that he may be prosecuted for the other offense, on the facts disclosed in the first trial.
The purpose of the statute was to protect a person against being prosecuted twice, not only for the same offense in name, but even on the same state of facts, for offenses different in name.
The court’s application of, the constitutional guaranty in this case, if it be allowed to stand, will operate, not to protect a person against being prosecuted twice for the same offense — because it is not contended that the statute allows that — but to take away the statutory protection against a person’s being prosecuted twice on the same state of facts for offenses different in name. That would surely be an astonishing consequence; because, if Act 123 of 1855, now section 1055, Rev. St., is violative of the constitutional 'guaranty against a person's being tried twice for the same offense, the Legislature will never be allowed to correct it.