Handy, J.:
The plaintiff in error was indicted for unlawfully selling and retailing vinous and spirituous liquors in less quantities than one gallon, without license. The indictment contained two counts, the first charging that the defendant sold the vinous and spirituous liquor to John Hobart, and divers other persons to the jurors unknown, and the second that he sold vinous and spirituous liquor to John Hobart and divers other persons to the [1287] jurors unknown, and permitted the ■ same to he drunk on his premises.
The defendant pleaded a former conviction for the same offense, and incorporated in the plea a transcript of the record and proceedings in the same court, upon an indictment against him, charging him with selling unlawfully, and without license, vinous and spirituous liquors in a less quantity than one gallon, to John Smith and divers other persons to the jurors unknown; and also, in a second count, with selling vinous and spirituous liquors to John Smith and.divers other persons unknown to the jurors, and permitting the same to be drunk in and about his storehouse; to which indictment he appeared and pleaded guilty, whereupon judgment was rendered against him. To this plea a replication was filed on the part of the state, denying that the defendant had been convicted of the same offense charged in this indictment. A demurrer was filed to this replication, which was overruled, and the defendant rejoined,.taking issue upon the replication. The district attorney then asked leave to withdraw the replication, which was granted, the defendant excepting, and a new replication was filed, in a more formal manner, denying that the conviction pleaded was upon the same offense charged in this indictment, which was done before the case was submitted to the jury. Upon the issue taken upon the defendant’s plea, judgment was then rendered by .the court that there was no such record of conviction as set forth in the plea; and it was overruled, and the defendant required to answer over to the indictment.
Upon motion of the district attorney, the court allowed the district attorney to amend-.the indictment by striking out the words “ and divers other persons to the jurors unknown,” in both counts of the indictment, the defendant excepting. A plea of not guilty was then filed, and upon the trial of that issue a verdict was rendered against the defendant. A bill of exceptions was taken to the admission of certain testimony on the trial, and also to the refusal of the court to instruct the jury that the former conviction pleaded by the defendant is. a bar to this indictment.
.. The first error assigned is the overruling of the demurrer to [1288] the first replication. But no prejudice was caused to the defendant by this, inasmuch as the replication was afterwards withdrawn.
The second assignment is that the court erred in permitting the replication to be withdrawn, and a new one to be filed, after issue joined on the first. This was a matter within the discretion of the court, and its exercise does not appear to have worked ,any injury to the defendant, for it was attaining the same end that would have resulted if his demurrer to the replication had been sustained. And the rule in the courts in this country is to allow amendments of pleadings in cases of misdemeanor, though in England they were only allowed in cases of felony. Commonwealth v. Burge, 3 Penn., 262; Foster v. Commonwealth, 8 Watts & Serg., 77; 13 Mass., 456.
The third error assigned is that the court permitted the indictment to be amended by striking out certain descriptive words from it. This was expressly authorized by the statute. Bev. Code, 615, art. 262.
The next error assigned is the judgment of the court upon the plea of former conviction, in holding that the record of the conviction set forth in the plea was not a bar to a conviction under this indictment. This ground of error embraces also the ninth assignment, relating to the refusal of the instructions asked at the instance of the defendant, that the record of conviction pleaded was a bar to this indictment.
It is undoubtedly true that if the offense charged against a party in a second indictment be identical with an offense charged against the same party in a previous valid indictment, upon which he was tried and acquitted or convicted, that judgment will be a bar to the second indictment; and that it will be presumed that all the evidence that could be adduced in support of the former indictment was adduced on that trial. Rex v. Sheen, 2 Carr. & Payne, 634 (12 Eng. C. L. Rep., 776); 1 Buss, on Cr., 834 (7th Amer. from 3d Bond, edit., 1853). But in order to render a plea of former acquittal or former conviction successful, it is nécessary for the defendant to show the record of the former proceedings and conviction, and, further, to prove the identity of the offense, and also of the person charged in the two [1289] indictments. Arehb. Crim. PI, 4 Amer. edit., 85; 1 ib. by Waterman, 113, note. After proof of these things, the question is, whether the accused could have been convicted upon any state of evidence on the former indictment; for if he could, he must be acquitted on the second. 1 Euss. on Cr., supra.
The question, then, in this case is, does it appear by the record of the former conviction, set forth in the plea; for that was all the evidence offered in support of the plea that the offense of which the defendant was convicted on the former indictment is the same identical offense charged in this indictment. And it is very clear that the identity of the offense does not appear.
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Handy, J.:
The plaintiff in error was indicted for unlawfully selling and retailing vinous and spirituous liquors in less quantities than one gallon, without license. The indictment contained two counts, the first charging that the defendant sold the vinous and spirituous liquor to John Hobart, and divers other persons to the jurors unknown, and the second that he sold vinous and spirituous liquor to John Hobart and divers other persons to the [1287] jurors unknown, and permitted the ■ same to he drunk on his premises.
The defendant pleaded a former conviction for the same offense, and incorporated in the plea a transcript of the record and proceedings in the same court, upon an indictment against him, charging him with selling unlawfully, and without license, vinous and spirituous liquors in a less quantity than one gallon, to John Smith and divers other persons to the jurors unknown; and also, in a second count, with selling vinous and spirituous liquors to John Smith and.divers other persons unknown to the jurors, and permitting the same to be drunk in and about his storehouse; to which indictment he appeared and pleaded guilty, whereupon judgment was rendered against him. To this plea a replication was filed on the part of the state, denying that the defendant had been convicted of the same offense charged in this indictment. A demurrer was filed to this replication, which was overruled, and the defendant rejoined,.taking issue upon the replication. The district attorney then asked leave to withdraw the replication, which was granted, the defendant excepting, and a new replication was filed, in a more formal manner, denying that the conviction pleaded was upon the same offense charged in this indictment, which was done before the case was submitted to the jury. Upon the issue taken upon the defendant’s plea, judgment was then rendered by .the court that there was no such record of conviction as set forth in the plea; and it was overruled, and the defendant required to answer over to the indictment.
Upon motion of the district attorney, the court allowed the district attorney to amend-.the indictment by striking out the words “ and divers other persons to the jurors unknown,” in both counts of the indictment, the defendant excepting. A plea of not guilty was then filed, and upon the trial of that issue a verdict was rendered against the defendant. A bill of exceptions was taken to the admission of certain testimony on the trial, and also to the refusal of the court to instruct the jury that the former conviction pleaded by the defendant is. a bar to this indictment.
.. The first error assigned is the overruling of the demurrer to [1288] the first replication. But no prejudice was caused to the defendant by this, inasmuch as the replication was afterwards withdrawn.
The second assignment is that the court erred in permitting the replication to be withdrawn, and a new one to be filed, after issue joined on the first. This was a matter within the discretion of the court, and its exercise does not appear to have worked ,any injury to the defendant, for it was attaining the same end that would have resulted if his demurrer to the replication had been sustained. And the rule in the courts in this country is to allow amendments of pleadings in cases of misdemeanor, though in England they were only allowed in cases of felony. Commonwealth v. Burge, 3 Penn., 262; Foster v. Commonwealth, 8 Watts & Serg., 77; 13 Mass., 456.
The third error assigned is that the court permitted the indictment to be amended by striking out certain descriptive words from it. This was expressly authorized by the statute. Bev. Code, 615, art. 262.
The next error assigned is the judgment of the court upon the plea of former conviction, in holding that the record of the conviction set forth in the plea was not a bar to a conviction under this indictment. This ground of error embraces also the ninth assignment, relating to the refusal of the instructions asked at the instance of the defendant, that the record of conviction pleaded was a bar to this indictment.
It is undoubtedly true that if the offense charged against a party in a second indictment be identical with an offense charged against the same party in a previous valid indictment, upon which he was tried and acquitted or convicted, that judgment will be a bar to the second indictment; and that it will be presumed that all the evidence that could be adduced in support of the former indictment was adduced on that trial. Rex v. Sheen, 2 Carr. & Payne, 634 (12 Eng. C. L. Rep., 776); 1 Buss, on Cr., 834 (7th Amer. from 3d Bond, edit., 1853). But in order to render a plea of former acquittal or former conviction successful, it is nécessary for the defendant to show the record of the former proceedings and conviction, and, further, to prove the identity of the offense, and also of the person charged in the two [1289] indictments. Arehb. Crim. PI, 4 Amer. edit., 85; 1 ib. by Waterman, 113, note. After proof of these things, the question is, whether the accused could have been convicted upon any state of evidence on the former indictment; for if he could, he must be acquitted on the second. 1 Euss. on Cr., supra.
The question, then, in this case is, does it appear by the record of the former conviction, set forth in the plea; for that was all the evidence offered in support of the plea that the offense of which the defendant was convicted on the former indictment is the same identical offense charged in this indictment. And it is very clear that the identity of the offense does not appear.
It is argued in behalf of the plaintiff in error that, inasmuch as the defendant might have been convicted by proper evidence under the former indictment, for selling spirituous liquor without license to John Hobart, he is entitled to the benefit of the presumption that the conviction was for that offense, and should have been acquitted on this indictment. But this proceeds upon a manifest perversion of the rule above stated, in relation to the presumption of law applicable to the former conviction. That rule applies only when the identity of the offense has been sufficiently established by evidence to be adduced by the defense ,* and in offenses which, in their nature, are capable of repetition, and each repetition of which is a substantive violation of law, there is no legal presumption of identity. Thus, if the former indictment had charged a selling to John Hobart, and the defendant had been convicted upon that indictment, the record of the conviction would not, in presumption of law, have been a bar to the present indictment, because it would not necessarily appear that he was charged with the same identical offense in both indictments. It would have been incumbent on the defendant in such case, as it was incumbent on him in this, to prove by sufficient evidence, in addition to the record of the former conviction, that the offense of which he was there convicted was the same identical offense charged in this indictment ; and if the plea had been one of former acquittal, and the record had showed it, and the identity of the offense with that for which he was tried under the former indictment had been established by sufficient evidence, then he could not be [1290] convicted by any evidence upon this indictment, though such evidence was not adduced on the former trial, and might. have been sufficient, if adduced, to convict. Hence, if it be conceded that the defendant might have, been convicted upon proper evidence on the former indictment, for selling to John Hobart, it would by no means follow that the offense charged in this indictment must be the same identical offense of which he was then convicted; for he might have unlawfully sold spirituous liquors to John Hobart at divers times; and if so, upon the reasoning in behalf of the plaintiiff in error, a conviction for one of the offenses would, by the. mere legal operation of the record of conviction, be a bar to an indictment for any other of them, without any proof of the identity of - the offense. It is therefore manifest that there is no legal presumption of identity arising from the record of conviction, and that it was incumbent on the defendant to prove the identity by sufficient legal evidence, in addition to the record of conviction, in order to mate his plea successful. 1 Archb. Cr. Pl. by Waterman, 113, note 1, quoting 2 Russell on Cr.; State v. Cassity, 1 Richardson, 91; State v. Ainsworth, 11 Vermont, 91.
We think, therefore, that the judgment upon the plea, and the action of the court in overruling the defendant’s instructions in relation to it, were correct.
The last ground of error relied on is, that the court allowed the witness Wren — who was a member of the grand jury which found the indictment — to testify on the trial.
The first question propounded to this witness to which objection was made was, whether he was one of the grand jury at the time at which both of the indictments against the defendant were found. It is not perceived that any prejudice could be done to the defendant by an answer to this question, whether in the affirmative or negative. The witness was also asked, on the part of the state, whether the indictment against the defendant for selling spirituous liquors to John Smith and others was found, and whether John Hobart was before the grand jury before the indictment in the last mentioned case was found. To these questions the defendant objected, on the ground that what transpired in the grand jury room is not evidence.
[1291] Whatever may have been the rule in relation to the competency of these questions before the passage of the present code, they are rendered competent by the provisions then made upon the subject. New. Code, 614, art. 252.
Let the judgment be affirmed.