Blair v. State

Blandford, Justice.

1. The plaintiff in error was indicted for selling spirituous liquors without a license. He filed a plea to the effect that in that court he had been formerly tried and convicted of the same offence. The plea was demurred to, and the court sustained the demurrer. We think the court was right in sustaining the demurrer. The plea contained very little of what is essential to a plea of a former conviction. No record of the former trial and conviction was set out. The former judgment was not set out, nor the term at which it was rendered. No such plea has been allowed in any court that we are aware of.

2. But even if the former conviction had been properly pleaded, we do not think it would have constituted any bar to this indictment. It was alleged by the defendant that, in the former case, he had been convicted of selling liquor to a minor without the written consent of his parent or guardian, and that the act of sale was the saíne for which he was indicted in the present case. While it may be true that the act of selling was identical in both cases, yet the offences were separate and distinct. Two different laws were violated. He violated one law in selling to a minor without the written consent of his parent or guardian ; he violated another in selling without a license from the proper authority. We think the true rule is this : If the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offence charged in the second indictment, then the former conviction or acquittal could not be pleaded in bar to the second indictment. Although the testimony as to the act of selling may have been the same in the second of these eases as in the first, yet in order to convict of the offence charged in the second indictment, it was necessary to prove the further fact that this selling was without a license.

Judgment affirmed.