Opinion
May Term, 1901.
John P. Wheeler, for the appellant.
Oscar B. Glezen, for the respondent.
On the undisputed facts in this case the defendant, on his plea of a former conviction, was entitled to judgment. The burden was on him to show a conviction of an offense identical with the one with which he was charged in the second indictment. This he established, prima facie, by the production of the record showing a conviction under an indictment which could be sustained by the evidence necessary to support the second indictment; and it was then incumbent on the prosecution to show that the conviction was, in fact, for a different offense. (3 Greenl. Ev. § 37; 17 Am. Eng. Ency. of Law [2d ed.], 597; People v. M'Gowan, 17 Wend. 386; Commonwealth v. Robinson, 126 Mass. 259.)
I think there can be no question that under the first indictment charging the defendant with selling strong and spirituous liquors at the town of Candor on December 30, 1898, "to Gardiner C. Hibbard, and to other and divers persons to this Grand Jury unknown," the prosecution could have proved the sale by the defendant, on that day, in that town, of strong and spirituous liquors to Frederick J. Bryant as charged in the second indictment. The offense consisted in the sale of liquor without a liquor tax certificate, and under the designation "to other and divers persons," proof may be given of sale to any individual. ( People v. Adams, 17 Wend. 475; People v. White, 55 Barb. 606.)
It is true that each sale of liquor without a license is a distinct offense, and the prosecution proved sales made by the defendant on December thirtieth to both Hibbard and to Bryant, but the only effect of this was to show that there could have been a conviction under the first indictment for a sale to Hibbard. So there could have been for a sale to Bryant. Had the conviction been the result of a trial, the record might have shown that it was, in fact, for an offense other than the one now charged; but the defendant having pleaded guilty to the first indictment, his conviction on that plea was, in legal effect, of any offense which was provable against him under that indictment. Such a plea "is a record admission of whatever is well alleged in the indictment." (1 Bish. New Cr. Proc. [4th ed.] § 795.)
If an anomalous result is thus produced, it is attributable to the form of the pleading in the first indictment. Had it charged the sale of intoxicating liquors on that day to Hibbard only, the plea of guilty would have been of an offense which would have been readily distinguishable from the one charged in the second indictment.
The judgment and order denying a new trial should be reversed.
All concurred.
Judgment and order reversed and defendant discharged.