COURT OF APPEALS.

#### John A. Canter, plaintiff in error, agt. The People, &c., defendants in error.

Where a defendant on the trial of an indictment against him, for a criminal charge, is acquitted o-n the ground of a *variance*between the indictment and the prrof, such acquittal forms no bar to the trial on a second indictment against him for the same offense.

*March Term,*1867.

The plaintiff in error was indicted in the New York general Sessions in June, 1865, for that wilfully and feloniously on the 1st of February in that year, he had in his possession a certain forged and counterfeit note commonly called a bank note, issued by the Mechanic’s Bank of New Haven, in the state of Connecticut, of the denomination of ten dollars, with intent then and there feloniously to utter and pass the same. Upon the arraignment of the prisoner, he interposed an *auterfois acquit,*which set forth an indictment found against him in the same words as the present indictment, for having in his possession a like false and counterfeit bank-note, of the denomination of ten dollars, issued by the Northfield Bank of the state of Vermont, with like intent to pass the same; that upon said last-mentioned indictment the prisoner was arraigned and pleaded not guilty, and was put upon his trial, and that the jury then and there impanelled rendered their verdict that the said prisoner was not guilty, on the ground of a variance between the indictment and the proof. The plea then averred that the offense of forgery in the present indictment, and the said offense in the former indictment, are not diverse or different offenses, and the plea then proceeds to show wherein the offense charged in the former indictment was the same offense as *92that set forth in the present indictment, wherefore, as the prisoner had already been heretofore acquitted of the offense of forgery aforesaid, he prayed judgment that he be dismissed and discharged from the present indictment. The district attorney then and there demurred to said plea, and the prisoner joined in the demurrer; and after hearing counsel thereon, the said plea was overruled by the court, and judgment was given thereon for the people, and thereupon the prisoner was arraigned upon said indictment, and pleaded not guilty, and demanded a trial.

He was subsequently convicted of forgery in the second degree, and sentenced to be imprisoned in the state prison at hard labor for the term of ten years.

The judgment of the general sessions was affirmed in the supreme court, and the prisoner now brings his writ of error to this court.

S. H. Stuart *for plaintiff in error.*

A. Oakey Hall *for defendants in error.*

Davies C. J.

Assuming, as we may for the purpose of deciding this case, that the offense set forth in the first indictment, and upon which the prisoner was tried and acquitted, was the same offense as that charged in the second indictment, and upon which he has been tried and convicted, it by no means follows, as contended for by the counsel for the prisoner, that such verdict -of acquittal forms a bar to the trial upon this indictment.

It is claimed by the plaintiff in error that his arraignment and trial upon this second indictment is an infraction of the 5th article of the amendment to the constitution of the United States, which declares that *u*no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” This provision is a fundamental maxim in criminal jurisprudence. It is derived from the ancient and well-established principles of the common law, was ratified by *93*magna charta,*and is now firmly established by our national constitution. When this principle is invoked as a bar to further proceedings in a criminal prosecution, the inquiry always arises, has the party in fact been already put in jeopardy for the same offense ? To sustain the plea of a former acquittal, it must appear that the party was *u*put in jeopardy” by the former trial; thus, if the indictment upon which he had already been tried was so defective that no judgment could have been given upon it, it would not at common law constitute a bar *(People*agt *Barrett,*1 *Johns. R.*66 ; 1 *Russell on Cr.*836 ; *Burns*agt. *The People,*1 *Parker Cr. Reps.*182.)

Our Revised Statutes, however, provide that, *“*when a defendant shall have been acquitted of a criminal charge, upon trial, on the ground of a variance between the indictment and the proof, or upon any exception to the form or substance of the indictment, he may be tried and convicted upon a subsequent indictment for the same offense.” *(2d ed., Rev. S., Vol.*1., *p.*586, § 24.) *“*But where a defendant shall have been acquitted upon trial, on the merits and facts, and not upon any ground stated in the last section, he may plead such acquittal in bar of any snbsequent accusation for the same offense, notwithstanding any defect in form or in substance in the indictment upon which such acquittal was had.” *(Id.*§ 25.) But such former acquittal will not be a bar, if the court had no jurisdiction to try the offense (1 *Russ, on Cr.*1836,) or if the jury had been discharged without rendering a verdict *(People*agt. Bowden, 9 *Mass. B.*494 ; *U. S. Peres,*9 *Wheat. R.*579,) or if there has been a failure of the trial for any other cause (12 *Pick. R.*496.) But the plea in the present case presents the ground of accquittal on the former trial in the very words of section 24 above quoted, viz: on the ground of a variance between the indictment and the proof. We are, therefore, admonished by this clear and explicit declaration of the statute, that an acquittal upon such ground forms no *94bar to a trial and conviction upon a subsequent indictment for the same offense. The plain provision of the statute disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.

It is claimed by the prisoner that both indictments were in fact for the same offense. But we deem it unnecessary to pass upon this question.

The judgment should be affirmed.

Concurring on the main question : Weight, Poetee, Hunt, Scrugham, and Grover.

The question of having several forged bills in possession, &c., not passed upon.

Affirmed.