Libbey, J.
This is an indictment for manslaughter. The indictment alleges, in substance, that the defendant on the third day of March, 1879, made an assault upon one George Morton, and inflicted upon him certain mortal wounds of which he died on the twenty-third of said month.
The defendant pleaded in bar a former conviction of simple . assault and battery upon said Morton, on said third day of March, before the municipal court of Lewiston, on the fourth day of said March.
To this plea the county attorney filed a general demurrer, which was joined, and the demurrer was sustained by the court, and the defendant ordered to plead over, and thereupon pleaded guilty.
The case comes before this court on exceptions to the foregoing ruling, with the stipulation that, if the plea in bar is adjudged good by this court the defendant is to have leave to withdraw his plea of guilty.
[457]*457No objection is made in argument to the sufficiency of the defendant’s plea in bar, but the case is presented by both sides upon the facts, assuming that the pleadings are in proper form to raise the legal questions involved. We, therefore, have no occasion to consider the sufficiency of the plea either in form or substance.
The precise question presented is, whether the conviction of the defendant, before the municipal court of Lewiston, on the fourth day of March, of simple assault and battery, for the same battery of which Morton died, on the twenty-third day of March, is a bar to the indictment for manslaughter.
The plea of former conviction, like that of former acquittal, is founded upon that great principal and fundamental maxim of criminal jurisprudence, that no man shall be twice put in jeopardy for the same offense. This is one of the ancient and well established principles of the common law, sanctioned and enforced in the constitution of this state in the following words: “No person, for the same offense, shall be twice put in jeopardy of life or limb.” Gonst. of Maine, art. 1, § 8. This clause is, in substance, embraced in most, if not all of the constitutions of the several states, and in the constitution of the United States; and, as construed by the court, is equivalent to a declaration of the common law rule that no person shall be twice tried for the same offense.
To constitute a bar to the indictment against the defendant it is a well established rule that the former conviction must have been for the same offense in law and in fact.
Mr. Justice Blackstone states the rule thus: “It is to be observed that the pleas in autrefoits acquit and autrefoits convict, or a former acquittal, and a former conviction, must be upon a prosecution for the same identical act and crime.” 4 Black. Com. 336.
It is believed that this rule is uniformly recognized and sanctioned by courts governed by the rules of the common law. Rex v. Vandercomb, 2 Leach C. C. 708. Stark G. Pl. 355 (1 Am. ed.) Comm. v. Roby, 12 Pick. 496. 2 Lead. Cr. Cas. 555, (note by B. & H.) and cases there cited.
Mr. Chi tty states the rule as follows: “as to the identity of [458]*458the offense, if the crimes charged in the former and present prosecution are so distinct that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law, to say, that the offenses are so far the same, that an acquittal of the one will be a bar to the prosecution for the other.” 1 Chit. Cr. Law. 453.
In Comm. v. Roby, Shaw, C. J., says : “In considering the identity of the offense, it must appear by the plea, that the offense charged in both cases was the same in law and in fact.”
The general rule, by which it is to be-determined whether an acquittal or conviction on one indictment is a good bar to another, is stated by many authorities, in substance, as follows : if the first indictment were such as'.the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal or conviction on the first indictment will be a bar to the second. Rex v. Vandercomb, supra. 2 East’s P. C. 522. Comm. v. Roby, supra.
This general rule is,however, subject to this exception. When, after the.first prosecution, a new fact supervenes, for which the defendant is responsible, which changes the character of the offense, and together with the facts existing at the time constitute a new and distinct crime, an acquittal or conviction of the first offense is not a bar to an indictment for the other distinct crime. Case of Nicholas, Foster’s Cr. L. 64. Comm. v. Roby. Burns & Cary v. The People, 1 Parker, C. C. 183. Comm. v. Evans, 101 Mass. 25. State v. Hattabough, Cen. Law Journal, August 1, 1870, page 87 (S. C. Indiana).
Comm. v. Roby, was an indictment for murder. The defendant pleaded,in bar a conviction of assault with intent to murder, before the death of the party assaulted. Shaw, C. J., in discussing the question of the identity of the offenses, says: “The indictment for murder necessarily charges the fact of killing, as the essential and most material fact, which gives its legal character to the offense. If the party assaulted, after a felonious assault, dies within the year and a day, the same act, which till the death was. an assault and misdemeanor only, though aggravated, is by that event shown to have been a mortal wound. The event, strictly [459]*459speaking, does not change the character of the act, but it relates back to the time of the assault, and the same act, which might be a felonious assault only had the party not died, is in truth shown by that event to have been a mortal wound ; and the crime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony. The facts are essentially different, and the legal character of the crime essentially different.” The same principle is affirmed in Comm. v. Evans, Burns v. The People, and State v. Hattabough, supra, which in their facts, are like the ease at bar.
At the time of the first prosecution and conviction the defendant had not committed the crime with which he is now charged. True the force had been inflicted upon the body of Morton, but his death had not ensued. The force was acting to produce its effect, and the defendant was as much responsible for its natural and necessary result as if "he had all the while been pressing it upon the body of his victim. When death was caused by that force a new and distinct crime was consummated by the defendant, of which he was not before guilty, and for which he could not have been convicted at the time of the first prosecution. The offenses are not the same in fact, and therefore are not identical.
It is claimed in behalf of the defendant, that, as by the statutes of this state, the crime of assault and battery is now a felony, he may, under this indictment, be again convicted of that crime and thus be twice punished for the same offense. If the homicide was caused by the injuries inflicted, which is not denied by the plea in bar, but admitted by the plea of guilty, which is a part of the case, the defendant cannot properly be convicted upon this indictment of assault and battery, because it must be either murder, manslaughter, or justifiable homicide. Burns v. The People, 1 Parker, 183.
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Libbey, J.
This is an indictment for manslaughter. The indictment alleges, in substance, that the defendant on the third day of March, 1879, made an assault upon one George Morton, and inflicted upon him certain mortal wounds of which he died on the twenty-third of said month.
The defendant pleaded in bar a former conviction of simple . assault and battery upon said Morton, on said third day of March, before the municipal court of Lewiston, on the fourth day of said March.
To this plea the county attorney filed a general demurrer, which was joined, and the demurrer was sustained by the court, and the defendant ordered to plead over, and thereupon pleaded guilty.
The case comes before this court on exceptions to the foregoing ruling, with the stipulation that, if the plea in bar is adjudged good by this court the defendant is to have leave to withdraw his plea of guilty.
[457]*457No objection is made in argument to the sufficiency of the defendant’s plea in bar, but the case is presented by both sides upon the facts, assuming that the pleadings are in proper form to raise the legal questions involved. We, therefore, have no occasion to consider the sufficiency of the plea either in form or substance.
The precise question presented is, whether the conviction of the defendant, before the municipal court of Lewiston, on the fourth day of March, of simple assault and battery, for the same battery of which Morton died, on the twenty-third day of March, is a bar to the indictment for manslaughter.
The plea of former conviction, like that of former acquittal, is founded upon that great principal and fundamental maxim of criminal jurisprudence, that no man shall be twice put in jeopardy for the same offense. This is one of the ancient and well established principles of the common law, sanctioned and enforced in the constitution of this state in the following words: “No person, for the same offense, shall be twice put in jeopardy of life or limb.” Gonst. of Maine, art. 1, § 8. This clause is, in substance, embraced in most, if not all of the constitutions of the several states, and in the constitution of the United States; and, as construed by the court, is equivalent to a declaration of the common law rule that no person shall be twice tried for the same offense.
To constitute a bar to the indictment against the defendant it is a well established rule that the former conviction must have been for the same offense in law and in fact.
Mr. Justice Blackstone states the rule thus: “It is to be observed that the pleas in autrefoits acquit and autrefoits convict, or a former acquittal, and a former conviction, must be upon a prosecution for the same identical act and crime.” 4 Black. Com. 336.
It is believed that this rule is uniformly recognized and sanctioned by courts governed by the rules of the common law. Rex v. Vandercomb, 2 Leach C. C. 708. Stark G. Pl. 355 (1 Am. ed.) Comm. v. Roby, 12 Pick. 496. 2 Lead. Cr. Cas. 555, (note by B. & H.) and cases there cited.
Mr. Chi tty states the rule as follows: “as to the identity of [458]*458the offense, if the crimes charged in the former and present prosecution are so distinct that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law, to say, that the offenses are so far the same, that an acquittal of the one will be a bar to the prosecution for the other.” 1 Chit. Cr. Law. 453.
In Comm. v. Roby, Shaw, C. J., says : “In considering the identity of the offense, it must appear by the plea, that the offense charged in both cases was the same in law and in fact.”
The general rule, by which it is to be-determined whether an acquittal or conviction on one indictment is a good bar to another, is stated by many authorities, in substance, as follows : if the first indictment were such as'.the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal or conviction on the first indictment will be a bar to the second. Rex v. Vandercomb, supra. 2 East’s P. C. 522. Comm. v. Roby, supra.
This general rule is,however, subject to this exception. When, after the.first prosecution, a new fact supervenes, for which the defendant is responsible, which changes the character of the offense, and together with the facts existing at the time constitute a new and distinct crime, an acquittal or conviction of the first offense is not a bar to an indictment for the other distinct crime. Case of Nicholas, Foster’s Cr. L. 64. Comm. v. Roby. Burns & Cary v. The People, 1 Parker, C. C. 183. Comm. v. Evans, 101 Mass. 25. State v. Hattabough, Cen. Law Journal, August 1, 1870, page 87 (S. C. Indiana).
Comm. v. Roby, was an indictment for murder. The defendant pleaded,in bar a conviction of assault with intent to murder, before the death of the party assaulted. Shaw, C. J., in discussing the question of the identity of the offenses, says: “The indictment for murder necessarily charges the fact of killing, as the essential and most material fact, which gives its legal character to the offense. If the party assaulted, after a felonious assault, dies within the year and a day, the same act, which till the death was. an assault and misdemeanor only, though aggravated, is by that event shown to have been a mortal wound. The event, strictly [459]*459speaking, does not change the character of the act, but it relates back to the time of the assault, and the same act, which might be a felonious assault only had the party not died, is in truth shown by that event to have been a mortal wound ; and the crime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony. The facts are essentially different, and the legal character of the crime essentially different.” The same principle is affirmed in Comm. v. Evans, Burns v. The People, and State v. Hattabough, supra, which in their facts, are like the ease at bar.
At the time of the first prosecution and conviction the defendant had not committed the crime with which he is now charged. True the force had been inflicted upon the body of Morton, but his death had not ensued. The force was acting to produce its effect, and the defendant was as much responsible for its natural and necessary result as if "he had all the while been pressing it upon the body of his victim. When death was caused by that force a new and distinct crime was consummated by the defendant, of which he was not before guilty, and for which he could not have been convicted at the time of the first prosecution. The offenses are not the same in fact, and therefore are not identical.
It is claimed in behalf of the defendant, that, as by the statutes of this state, the crime of assault and battery is now a felony, he may, under this indictment, be again convicted of that crime and thus be twice punished for the same offense. If the homicide was caused by the injuries inflicted, which is not denied by the plea in bar, but admitted by the plea of guilty, which is a part of the case, the defendant cannot properly be convicted upon this indictment of assault and battery, because it must be either murder, manslaughter, or justifiable homicide. Burns v. The People, 1 Parker, 183. A conviction of assault and battery would be authorized only on failure of proof that death resulted from the injuries inflicted.
But it frequently happens that a man is in a certain sense, twice punished for the same acts ; as when the facts constituting the first offense, taken in connection with other facts, for which he is responsible, constitute a distinct and different offense. In such [460]*460case, although he has been convicted of the first offense, he may be convicted of the second, notwithstanding that to convict of the second, it is necessary to prove the facts embraced in the first. The rule upon this point is very clearly and fully stated by Walton, J., in State v. Inness, 53 Maine, 536.
But, admitting that the defendant may be legally convicted of the crime of assault and battery, on this indictment, still we are of opinion, that, under the rules .of pleading, he may protect himself from being twice in jeopardy for the same offense. He may plead the former conviction in bar of the offense of assault and battery, embraced in the indictment, and not guilty of manslaughter ; and then if acquitted of manslaughter, he will have the benefit of his plea in bar. At common law the plea of former conviction in bar must set forth the record of the former conviction, and plead over as to the felony. 2 Hale, 255-392. Arch. Cr. Pr. and Pl. 352. Comm. v. Curtis, 11 Pick. 133. Stark. Cr. Pl. 370, 375. Upon this point Starkey says, “and in general the pleading not guilty is no waiver of a special plea, and does not render it double.” “But if A., having the king’s pardon of manslaughter be arraigned upon an indictment for murder, he ought not to plead not guilty, for he would thereby waive his pardon. He ought to confess the indictment as to manslaughter, and plead the king’s pardon ; and as to the killing with malice prepense he shall plead that he is not guilty. Tiren if he were found guilty of murder, he would have judgment; if acquitted of murder, his plea would be allowed.” Stark. Civ PI. supra. The same principle applies to a plea of former conviction.
This rule is recognized in Comm. v. Curtis, supra, which was an indictment for larceny in a dwelling-house, and a plea of former conviction of larceny. Wilde, J., in the opinion of the court says: “The defendant should have pleaded autrefois convict as to the larceny, and not guilty as to the residue of the charge.”
The result is, that, both on principle and authority, the defendant’s plea is not a bar to the indictment.
Exceptions overruled.
Judgment for the state.
Appleton, C. J., Walton, Peters and Svmonds, JJ., concurred.