State v. Ellison ( 1880 )

Freeman J.,

delivered the opinion of the Court.

Defendant was indicted for wantonly and wil-fully killing a hog. He had been previously in-dieted for the larceny of the same hog, but had. been acquitted. He pleads this fact as once in jeopardy, in bar of the present indictment, and his plea was held good by the Judge below.

In this there was error. The ■ offense of maliciously or wantonly killing the stock of another in no wise involves the idea of stealing a hog, nor does the stealing a hog involve, as a necessary part of the ofíense, the act of wantonly killing it. A man may well steal a hog alive and not kill it at all.

The principle of the case of Fiddler v. State, 7 Hum., 508, that whatever is a .necessary ingredient in the offense for which the party was tried, but must be considered as having been passed on in the former trial, is a correct one, but has no application to. the facts of this case.

Reverse the judgment, and remand the case for further proceedings.