State v. Andrews

27 Mo. 267

Opinion

Richardson, Judge,

delivered the opinion of the court.

We think that the instructions asked by defendant were properly refused, because they all assume, as a matter of law, that the misdemeanor for which the defendant was on trial was the same offence for which he had previously been indicted and convicted. Each act of selling is a distinct offence, for which the defendant may be prosecuted by a separate indictment, or by different counts in the same indictment ; and when it is pleaded that the offence charged in both indictments is the same, the averment may be established by parol evidence and is to be proved by the defendant. To sustain the plea in this case, it was incumbent on the defendant not only to produce the record of the former conviction, but to show by testimony that he had been previously tried for identically the same offence as the one for which he was then prosecuted; and it was not sufficient to show that the evidence offered on the last trial would have supported the first indictment because it would have been sustained by proof of any act of selling within twelve months before the finding thereof. Whether, therefore, the offences charged in both indictments were the same, was a question of fact; and, though the court on the evidence would have been authorized to have found the issue on the plea for the defendant, the conclusion from the proof ought not to have been announced as a declaration of law.

The judgment, however, must be reversed on a point of practice. The only plea in the record is the plea of autrefois convict, and the finding of the court was not responsive to the issue tendered by the plea. It was the duty of the court to have had the plea of not guilty entered, for the statute provides that in all cases when the defendant does not confess the indictment to be true, a plea of not guilty shall be entered and the same proceedings shall be had in all respects as if he had formally pleaded not guilty. (R. C. 1855, p. 1181, § 5; Walder v. State, 11 Mo. 363.)

The judgment will be reversed and the cause remanded.

The other judges concur.