The opinion of the court was delivered by
Brewer, J.:
Appellant was indicted for the crime of shooting with intent to kill. To this indictment he pleaded autrefois acquit. A demurrer to this plea was sustained; and without waiting until after a trial on the merits, defendant has appealed to this court from the ruling sustaining the demurrer. Doubtless the appeal is premature, and the case not properly before us. No judgment has yet been rendered, and appeals in criminal cases are only from judgments. (Gen. Stat., p. 865, § 281; The State v. Freeland, ante, p. 9.)
But waiving this, we think the ruling of the district court was correct. The plea disclosed a prosecution against appellant for maliciously shooting and wounding a horse, not the property nor in the possession of the party upon whom the assault with intent to kill is charged to have been made, and alleged that the shooting charged in the two prosecutions was one and the same shooting. Does this disclose an acquittal of the offense of which he is now charged ? We think not. The two offenses are entirely distinct. One is not included in the other — is not a lesser degree of the other. The character of the testimony must be different in each. One fact, that is, “shooting,” may be necessary for conviction under either charge. But something more is necessary in each, thán the mere fact of shooting. The rule is thus stated by Wharton in his Criminal Law, (1 Wharton, 7th ed., §565:) “It may be generally said, that the fact that the two offenses form part of the same transaction, is no defense, when the defendant could not have been convicted at the first trial, on the indictment then pending, of the offense charged in the second indictment.” And again: ■ “ Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good, but not otherwise.” It was said by Lord Denman, in Regina v. Button, 11 Ad. & Ellis, New Series, 946, “The same act may be part of several offenses. The same blow may be the subject of inquiry in consecutive charges of murder and robbery. The acquittal on the first charge is no bar to a second inquiry, where both are charges of felonies; neither ought it to be, when the one charge is of felony, and the other of misdemeanor.” In 1 Russell on Crimes it is laid down, that “The acquittal on one indictment, in order to be a good defense to a subsequent indictment, must be an acquittal of the same identical offense charged in the first indictment.” In the case of the Commonwealth v. Harrison, 11 Gray, 308, a party who had been tried for selling liquors without license was convicted of the offense of keeping his saloon open on Sunday, although the sale of the liquor was part of the evidence to sustain the latter charge. In Commonwealth v. Bake- man, 105 Mass. 53, the defendant had been acquitted under a charge of willfully obstructing the engines and carriages of the C. Rld. Co., by placing an iron rail across the track, and was subsequently convicted upon a charge, under a different section of the statute, of willfully putting a rail across the track with intent to obstruct the engines and carriages of the same company, and the conviction was sustained, although the same act was referred to in the two charges. The court uses this language: “It may well be that both indictments refer to the same transaction; but that fact is not decisive as to the legal identity of the two offenses. The test as to the legal identity of the two offenses is to be found in the answer to this question: Could the prisoner, upon any evidence that might have been produced, have been convicted upon the first indictment of the offense that is charged in the second?” See also, Commonwealth v. Roby, 12 Pick. 496, in which it was held, that a conviction of an assault with intent to murder could not be pleaded in bar to an indictment for murder. In Price v. The State, 19 Ohio, 423, the rule is stated as taken from Archbold’s Cr. Pleading, and also from Roscoe’s Cr. Ev., that “the true test, by which the question, whether such a plea is a sufficient bar in any case, may be tried, is, whether the evidence necessary to support the second indictment would have been sufficient to prove a legal conviction in the first.” These authorities are decisive of the question, and the ruling of the district court was correct.
The appeal will be dismissed.
All the Justices concurring.