State v. Sterrenberg

Adams, Oh. J.

The defendant entered a plea of not guilty, and also a plea of former acquittal. The latter plea showed that on the fourth day of August, 1884, the defendant was tried before one Block, a justice of the peace, under an information charging tbe same offense, and was acquitted. The evidence, however, showed that the information under which the defendant was tried before Justice Block charged him only with selling whisky and stomach bitters, and the time laid was on or about the first day of August, 1884. The parties stipulated that the trial before Justice Block ou the fourth day of August, 1884, included all offenses for sales of intoxicating liquor up to and including August 1, 1884, and it is not denied that on that trial the defendant was acquitted. The state, however, was allowed to prove in the present action, against the objections of the defendant, the sales of dandelion bitters during the months of June and J uly previous. The court also gave an instruction in these words: “You are instructed, as a matter of law, that the former acquittal is not a bar to this prosecution; and, if you find from the evidence, beyond a reasonable doubt, that the defendant, at any time within one year next before August 4, 1884, sold to John Deemer any dandelion bitters in this county, and, by the same degree of proof, that such dandelion bitters were intoxicating, that they were capable of being used and were sold to be drank as a beverage, he is guilty of the charge, and you should so say in your verdict.”

In allowing evidence of the sales of dandelion bitters during the time covered by the former information, and in giving the instruction above set out, the court evidently proceeded upon the theory that dandelion bitters were not stomach bitters within the meaning of the former information. But the evidence, we think, shows that the names “stomach bitters ” and “ dandelion bitters ” do not have very precise meanings. "With what propriety the name “stomach bitters” could be applied to a mixture containing dandelion does not very clearly appear, nor is it necessary to determine. We regard the matter, so far as this case is concerned, controlled by the stipulation above set out. The former trial was understood as including all offenses for sales of intoxicating liquors. It must, then, have been understood as including all offenses for the sale of dandelion bitters, where the same contained such an amount of intoxicating liquor that the sale constituted an offense, and it must, we think, have been understood that evidence of such offenses was admissible under the charge of sales of stomach bitters. If the state, in the former trial, put so broad a construction upon the words “stomach bitters,” and was allowed to proceed under such construction, it seems to us that the state cannot now properly be allowed to deny the correctness of its own construction, and proceed to try the. defendant over again for offenses for which there was an attempt to convict him, but of which he was acquitted.

In our opinion, then, the court erred in allowing evidence of sales of dandelion bitters during the time covered by the former information.

Reversed.