l criminal Identity^?1'ol’ fenses. — The State introduced evidence tending to establish the crime charged and rested. Whereupon the defendant introduced as a witness R. Pritchard, who testified he was a justice of the peace, and pig docket was admitted in evidence. It tended to show a former conviction for the same offense. The information filed before the justice was also introduced, and tended
II. The defendant introduced as a witness one Fritz, who gave evidence tending to show that he was present at the time the offense for which the defendant was then being tried was committed. He was asked to “state the facts as they ■occurred there at the bridge.” This question was objected to by the State as being immaterial, and the objection was .sustained. As the record is presented .to us we are at a loss to understand why the objection was either made or sustained.
'The defendant had pleaded not guilty, and such issue was 'then being tried. The evidence on the part of the State bore alone on that issue, and the defendant sought by the question to show the facts were not as the witnesses on the part of the State had testified. If admitted the innocence of the defendant might have been established.
The Attorney General suggests that it appeared in evidence that the defendant had procured the information to be filed before the justice, and that he had, therefore, substantially
2.-: fortion: fraiid. III. The theory of the State was that the conviction before Pritchard was procured by the defendant through fraud; therefore the State claimed the conviction was void and it was not concluded thereby. The defendant insists the third instruction given the jury cast upon him the burden of proving not only the former conviction but that also the trial was full and fair, and that the conviction was not obtained through fraud. If this be the meaning of the instruction it is without doubt, we think, erroneous. It devolved on the State to prove the fraud, and thus avoid .the force and effect of the conviction. There is some doubt as to the meaning of the instruction, and, as the cause must be reversed on other grounds, we deem it proper to say that on the retrial the defendant should have an instruction given the jury which casts the burden of proving the fraud on the State.
Reversed.