#### The State of Ohio *v.*Corwin.

*Criminal law*— Former *jeopardy*— Acquittal *of rape with*force— *Section 1241S, General Code*— Indictment *for rape with consent*— Section *12414, General Code*— “Same *offense” construed.*

Where one is tried upon a charge of rape with force and violence, under Section 12413, General Code, and upon trial is acquitted of such charge, and thereafter is indicted under Section 12414, General Code, charging rape with consent, and interposes a plea of former jeopardy to the second indictment, such plea upon demurrer of the state should he overruled. *(State*v. *Rose,*89 Ohio St., 383, approved and followed.)

(No. 17756

Decided December 30, 1922.)

Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Seneca, county.

In the January term, 1922, of the court of common pleas of Seneca county, Clem Corwin was indicted under Section 12413, General Code, for the crime of rape with force and violence upon one A. S., a female under sixteen years of age.

Upon that indictment, he was tried and acquitted by a jury.

At a subsequent term of the court, he was indicted under Section 12414 for the crime of carnally knowing said A. S., with her consent.

To the latter indictment the defendant pleaded former jeopardy, which plea was sustained by the court of common pleas.

The prosecuting attorney duly excepted, and brings his exceptions to this court for review.

*639
      *Mr. John L. Lott,*prosecuting attorney, for the exceptions.

*Mr. Walter K. Keppel,*against the exceptions.

Wanamaker, J.

The sole question in this case is whether or not the defendant below had been theretofore put in jeopardy “for the same offense.” Or, put in another form, is rape with force and violence upon a person under the age of sixteen, to-wit, fifteen years of age, the same offense as rape with consent?

It is obvious that under the first charge the state in order to establish the guilt of the accused had to assume the burden of proving beyond all reasonable doubt that the defendant used force and violence in having carnal knowledge with the prosecuting witness. If there was a reasonable doubt as to such force and violence charged in the indictment, it was clearly the duty of the jury to acquit.

The offense charged in the second indictment is clearly and convincingly not the same offense as charged in the first indictment. It is under an entirely different statute, and can in no wise be regarded as an included offense, for that under the statute relates to degrees of crime.

In the case of *State*v. *Rose,*89 Ohio St., 383, an analogous question was involved. In dealing with the language “same offense,” as used in the constitution, the following appears in the opinion, at page 386:

> “The words ‘same offense’ mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation.”

In that case it was further laid down, at page 387:

> *640“The usual test accepted by the text-writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.”

Surely this contention could not be successfully maintained in the case at bar. In many respects- the question involved is strikingly analogous to- an indictment for larceny of a sum of money. Now, one of the elements in order to prove the charge of larceny is a trespass in getting possession of the money. If the money was obtained by consent of one’s employer or principal, then there is lacking that element of larceny, and upon trial the jury and the court would be warranted in acquitting the defendant. But suppose thereafter he was indicted, charged with embezzlement of that money which while wrongfully taken and converted to his own use was lawfully in his possession as employe, or agent, etc., would it be urged that having been acquitted of larceny upon the first trial he had been in jeopardy of embezzlement as charged in the second indictment?

It very often would be advisable for the state through its prosecuting” attorney to have several counts in the indictment, anticipating possible variations of proof, such as rape with force and violence in one count, and rape with consent in another, or larceny in one and embezzlement in another, where there may be any question as to the manner and method in which the. defendant obtained possession of the money.

Failure, however, upon the part of the prosecutor, to join such count in the first indictment, would not *641foreclose the state of Ohio from prosecuting the defendant hy reason of former jeopardy, under the second indictment.

*Exceptions sustained.*

Marshall, C. J., Hough, Robinson, Jones, Matthias and Clark, JJ., concur.