Tonopah daily bonanza. [volume] (Tonopah, Nev.) 1906-1929, 1910-08-05

prove that the Indebtedness re-
suited from the conversion, no evil
dence having been put in to show
any other Indebtedness. Then the
state might bring another accusa-
ton worded in exactly the same |
way with the expectation of prov
ing that the Indebtedness was due
to the failure of a bank. Could the
former acquittal be shown in bar !,
of the second prosecution? But it
must not be overlooked that the
state seeks to do more in the pres
debtedness; it seeks to show and
states positively that the defei.-
dants knew of an indebtedness.
1 1t is difficult to conceive how any
court could or would do anything
but dismiss an accusation having
element for element the same as
one prosecuted before, and which
resulted in conviction or acquittai.
One of the accepted rules of ideh-
tity of crimes is as follows: AS
certain whether the facts At
LEGGED in the second indifferent
would, if given in evidence haze
warranted conviction on the first,
and if this is the case, the crimes
are assumed to be identical" If
nothing more were ALLEGED in
the second than in the first, would
not the court at the outset be
confronted with that condition, and
assume the two crimes to be identi-
cal? The rule referred to here
after seems to be conclusive of this
situation eff the evidence to sup
port the second indictment was adj
/, missable under the former, ETC.,
, the offenses are identical" ~ 9'yc.
PSI.
The final question is whether the
, state. in event of acquittal or con-
victon, can later bring an accusa
ton containing the same elements,
but going more into detail in stat
ing one OF the elements--in these
+ cases the sixth element The sixth
, element in the later accusation
might read: In favor of Owens
or Gilbert) who was then and
: there indebted to the said county
of Nye, in consequence of the loss
by him of certain county funds,
{ etc, said loss having been occa-
, stoned by the failure of THE
| bank etc. This would be an at
{ tempt, it may be supposed to prove
gu Indebtedness that was not prov
en- under the former accusation
SEVEN
But the former was a broader &C
cusation than this, and evidence
was admissible of this form of in
debtedness as well as some other
We now come to the general rule
The test almost universally ap
piled to determine the identity O
the Cffenses is to ascertain thu
!. identity in character and effect o
the evidence in both cases. If tn,
evidence necessary to support thu
second accusation was admissible
:. under the former tn
offenses are identical, and a ple
:, of former acquittal is a bar. L
eye. $50, supported by decision
!. from courts of eighteen states. TIL
averments of the sixth elements il
the cases under review are S
y broad that any evidence of the in
u debetedness is admissible, and be
u cause it is admissible Hereunder
y no detailed averment of it later
or any feature of it, can be use
- by the state, under the rule jus
given. This discussion closes wit
=" the conclusion that the accusation
include all essentials and are SUI
=, fcient. and that the defendants al
of in no danger of a second prosecr
to ton for the same offense because {
g. any alleged defects in them.
IL The former ruling is affrme
and the objections are overruled.
No MARK II. AVERILl.,
to District Judge.