Wolcott, Ch.,
delivering the opinion of the majority of the court:
Of the points raised by the argument we deem it necessary to notice only those that áre suggested by the sixth, third, and second assignments of error referred to in the preceding statement of facts.
First, as to the sixth and third assignments of error, we are constrained to hold them well taken. If a man is charged with having committed two crimes and is tried and convicted for one, may he on appeal from that conviction be tried and convicted for the other? That is the question which the sixth and third assignments of error call upon us to answer.
It has been repeatedly held in this state as well as elsewhere that in a criminal prosecution the state is not bound to prove the precise date laid in the indictment, it being sufficient if the evidence shows the alleged offense to have been committed at any time within the period mentioned by the applicable statute of limitations if any. This rule, however, whenever announced in this state has invariably been so announced in the court of original jurisdiction and applied to the case at the stage of its trial in the first instance. . No precedent other than the one now on review can be found in this state nor, so far as our investigation shows, elsewhere where the rule has been applied under such circumstances as are here found at the second trial of a case when it comes on for retrial upon an appeal. We think that the state was at liberty when the case was before the municipal court to depart in its proof from the date of the 11th as alleged in the information filed in that court and to offer in support of that information in that court evidence of the crime said to have been committed on the 14th. It did not do this, however. It presented evidence in that court solely with respect to the transaction of the 11th. The record shows that there were two separate and distinct offenses. The offenses were differentiated not alone by the respective dates, but as well by the presence of different sets of witnesses as to each. The distinct identity of the two criminal transactions is plainly [553]*553■disclosed by the record here: While as before stated the naming of the date of the alleged offense in the information filed in the municipal court as the 11th could not have the effect of confining the state at the trial in that court to the transaction actually occurring on that date but would have permitted a showing of the transaction on the 14th, yet when the state elected to present the transaction of the 11th in support of the information in the municipal court we think it exhausted its right under the general rule to elect which of the two transactions it would rely on. By the choice of the state the defendant was convicted in the municipal court for a criminal transaction occurring on April 11th. The defendant appealed from this conviction to the Court of General Sessions and then found himself being tried for the distinct offense of the 14th, an offense for which he had never been tried and which the appeal therefore could not in reason be said to have called up for review by retrial.
In Donaghy v. State, 6 Boyce 467, 100 Atl. 696, this cotut said that, “speaking generally an appeal effects a removal of the cause to another tribunal and involves a hearing de nova on both facts and law.” In that case the court observed that appeals from the judgments of the municipal court of the City of Wilmington are heard de nova in the Court of General Sessions as appeals to the Superior Court from a justice of the peace are heard. On appeals from a justice of the peace to the Superior Court, the rule appears to be well settled that though the hearing is de nova, yet the case on appeal must be the same, cáse that was heard below. Norton v. Janvier, 5 Harr. 346; Lord v. Townsend, 5 Harr. 457; Dominick v. Harmony Talking Machine Co., 4 Boyce 293, 88 Atl. 468. We discover nothing in reason which would make this rule prevailing in civil appeals inapplicable in criminal appeals. Indeed, while this court in the Donaghy Case, supra, did not in terms adopt for criminal appeals the analogy of the rule in civil appeals which requires the identity of the cause of action above, to correspond with that below, yet the opinion filed in that case at its appropriate points proceeds upon the conception that the rule is the same in. criminal as in civil appeals. If there is to be any [554]*554difference in procedure between the two it would seem that inasmuch as the liberty of the accused in the criminal case is more valuable than the money of the defendant in the civil action, the-former ought in reason to suggest more forcefully than the latter that on trial of an appeal the case should be the same as was tried below. We do not mean to say that the evidence above must be the same as was introduced below. The transaction or act charged to have been done by the defendant must, however, be the-same in the appellate tribunal as that charged in the lower. Commonwealth v. Blood, 4 Gray (Mass.) 31; Commonwealth v., Crawford, 9 Gray (Mass.) 131; Commonwealth v. Phelps, 11 Gray (Mass.) 72; Commonwealth v. Hogan, 11 Gray (Mass.) 313; Commonwealth v. Dressel, 110 Mass. 102; Marre v. State, 36 Ark. 222. The case of Wilson v. State, 113 Miss. 748, 74 So. 657, is cited in support of the contrary of this proposition. As we understand that case, however, we do not conceive it to be so. Nor do we conceive that the fact that in Massachusetts the trial above is had upon the record sent up by the court below, whereas in this state an information is filed in the appellate court based on a transcript sent up by the court below, can have the effect of rendering the cases above cited from Massachusetts inapplicable upon the proposition for which we have cited them.
In Commonwealth v. Blood, supra, the court said:
"If the government can, on the trial of an appeal be permitted to abandon the original offense charged, and on which the accused party was tried before the magistrate, and substitute another and distinct offense in its place, and support it by proof, it is obvious that the right of appeal, which was intended solely as a benefit and privilege to the party charged, might often be-converted into a burden and a snare."
The defect which inheres in this record has been occasioned by an over-emphasis upon the general rule which allows the state to depart from the date alleged in the indictment or information. The point presented by the exceptions is not so much concerned with that rule as it is with the question of identity of offenses in the two courts. The date in this connection is of significance only as an identifying circumstance tending to show that the two offenses were distinct. The record discloses other features of evidence [555]*555which together with the two dates unmistakably demonstrate that there were two alleged offenses separate and distinct from each other, and that the defendant was convicted below in the municipal court for the commission of one, appealed to the Court of General Sessions from said conviction, and in that court was convicted of the other. That is what in fact took place.
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Wolcott, Ch.,
delivering the opinion of the majority of the court:
Of the points raised by the argument we deem it necessary to notice only those that áre suggested by the sixth, third, and second assignments of error referred to in the preceding statement of facts.
First, as to the sixth and third assignments of error, we are constrained to hold them well taken. If a man is charged with having committed two crimes and is tried and convicted for one, may he on appeal from that conviction be tried and convicted for the other? That is the question which the sixth and third assignments of error call upon us to answer.
It has been repeatedly held in this state as well as elsewhere that in a criminal prosecution the state is not bound to prove the precise date laid in the indictment, it being sufficient if the evidence shows the alleged offense to have been committed at any time within the period mentioned by the applicable statute of limitations if any. This rule, however, whenever announced in this state has invariably been so announced in the court of original jurisdiction and applied to the case at the stage of its trial in the first instance. . No precedent other than the one now on review can be found in this state nor, so far as our investigation shows, elsewhere where the rule has been applied under such circumstances as are here found at the second trial of a case when it comes on for retrial upon an appeal. We think that the state was at liberty when the case was before the municipal court to depart in its proof from the date of the 11th as alleged in the information filed in that court and to offer in support of that information in that court evidence of the crime said to have been committed on the 14th. It did not do this, however. It presented evidence in that court solely with respect to the transaction of the 11th. The record shows that there were two separate and distinct offenses. The offenses were differentiated not alone by the respective dates, but as well by the presence of different sets of witnesses as to each. The distinct identity of the two criminal transactions is plainly [553]*553■disclosed by the record here: While as before stated the naming of the date of the alleged offense in the information filed in the municipal court as the 11th could not have the effect of confining the state at the trial in that court to the transaction actually occurring on that date but would have permitted a showing of the transaction on the 14th, yet when the state elected to present the transaction of the 11th in support of the information in the municipal court we think it exhausted its right under the general rule to elect which of the two transactions it would rely on. By the choice of the state the defendant was convicted in the municipal court for a criminal transaction occurring on April 11th. The defendant appealed from this conviction to the Court of General Sessions and then found himself being tried for the distinct offense of the 14th, an offense for which he had never been tried and which the appeal therefore could not in reason be said to have called up for review by retrial.
In Donaghy v. State, 6 Boyce 467, 100 Atl. 696, this cotut said that, “speaking generally an appeal effects a removal of the cause to another tribunal and involves a hearing de nova on both facts and law.” In that case the court observed that appeals from the judgments of the municipal court of the City of Wilmington are heard de nova in the Court of General Sessions as appeals to the Superior Court from a justice of the peace are heard. On appeals from a justice of the peace to the Superior Court, the rule appears to be well settled that though the hearing is de nova, yet the case on appeal must be the same, cáse that was heard below. Norton v. Janvier, 5 Harr. 346; Lord v. Townsend, 5 Harr. 457; Dominick v. Harmony Talking Machine Co., 4 Boyce 293, 88 Atl. 468. We discover nothing in reason which would make this rule prevailing in civil appeals inapplicable in criminal appeals. Indeed, while this court in the Donaghy Case, supra, did not in terms adopt for criminal appeals the analogy of the rule in civil appeals which requires the identity of the cause of action above, to correspond with that below, yet the opinion filed in that case at its appropriate points proceeds upon the conception that the rule is the same in. criminal as in civil appeals. If there is to be any [554]*554difference in procedure between the two it would seem that inasmuch as the liberty of the accused in the criminal case is more valuable than the money of the defendant in the civil action, the-former ought in reason to suggest more forcefully than the latter that on trial of an appeal the case should be the same as was tried below. We do not mean to say that the evidence above must be the same as was introduced below. The transaction or act charged to have been done by the defendant must, however, be the-same in the appellate tribunal as that charged in the lower. Commonwealth v. Blood, 4 Gray (Mass.) 31; Commonwealth v., Crawford, 9 Gray (Mass.) 131; Commonwealth v. Phelps, 11 Gray (Mass.) 72; Commonwealth v. Hogan, 11 Gray (Mass.) 313; Commonwealth v. Dressel, 110 Mass. 102; Marre v. State, 36 Ark. 222. The case of Wilson v. State, 113 Miss. 748, 74 So. 657, is cited in support of the contrary of this proposition. As we understand that case, however, we do not conceive it to be so. Nor do we conceive that the fact that in Massachusetts the trial above is had upon the record sent up by the court below, whereas in this state an information is filed in the appellate court based on a transcript sent up by the court below, can have the effect of rendering the cases above cited from Massachusetts inapplicable upon the proposition for which we have cited them.
In Commonwealth v. Blood, supra, the court said:
"If the government can, on the trial of an appeal be permitted to abandon the original offense charged, and on which the accused party was tried before the magistrate, and substitute another and distinct offense in its place, and support it by proof, it is obvious that the right of appeal, which was intended solely as a benefit and privilege to the party charged, might often be-converted into a burden and a snare."
The defect which inheres in this record has been occasioned by an over-emphasis upon the general rule which allows the state to depart from the date alleged in the indictment or information. The point presented by the exceptions is not so much concerned with that rule as it is with the question of identity of offenses in the two courts. The date in this connection is of significance only as an identifying circumstance tending to show that the two offenses were distinct. The record discloses other features of evidence [555]*555which together with the two dates unmistakably demonstrate that there were two alleged offenses separate and distinct from each other, and that the defendant was convicted below in the municipal court for the commission of one, appealed to the Court of General Sessions from said conviction, and in that court was convicted of the other. That is what in fact took place. The general rule which refuses to restrict the state’s proof of a crime to the precise date on which the indictment or information charges it to have been committed, cannot have the effect of justifying a departure on appeal from the transaction which was prosecuted below. The-state made its election of what particular offense it would complain against in the court of first instance. It could have relied in that court on the sale of the 14th in support of the information charging the 11th and in the appellate court, even though the information there charged the date to be the 11th, it would have been permitted to show the transaction of the 14th. If such had been the situation the general rule as to dates would have saved the state’s case from objection because the substance of the matter, that is, the identity of the transaction, would have remained the same. So also, if the record before us failed to disclose that the conviction in the municipal court was for the offense of the 11th, we would, because of the general rule as to immateriality of date, be compelled to say that the conviction in the Court of General Sessions for the offense of the 14th was not erroneous, notwithstanding the information in that court as well as the lower court named the 11th, because in such case, inasmuch as the municipal court could properly have received evidence of the transaction of the 14th in support of the information charging the 11th, it would be improper, the record being silent, to presume that the transaction of the 11th was in fact tried. Commonwealth v. Hogan, supra. But there is no silence in this record which permits us to indulge in presumptions as to what was done in the municipal court. The record as before stated clearly shows that two different offenses were tried in the two courts.
As to the second assignment of error, we think it without merit. It was immaterial under the facts of this case what the [556]*556records of the municipal court showed with respect to the two informations there filed against the defendant. The only thing the defendant could be permitted to show with respect to the proceedings in the municipal court was that he was there tried for an offense different in identity from the one he was then being tried for in the Court of General Sessions on appeal. The two informations in the municipal court could throw no light on that question, because though the one charging a sale on the 14th was nolle pressed yet the particular sale which it charged may, so far as the bare record of the information would show, have been proved to support.the information charging a sale on the 11th.
The judgment below will be reversed.
Pennewill, C. J., because of illness did not participate in the decision of this case. Richards, J., dissented.