Statement of the Case.

Wood's testimony was corroborated in many features by evidence tending to show not only that the car numbers had been removed but the cars themselves so changed as to make identification almost impossible.

Upon the trial of the accused for stealing the Wherry car it developed that the accused had theretofore been tried and acquitted for stealing the Clock car, one of the cars embraced in the scheme or plan referred to. While the witness Wood was upon the stand for the state the defendant objected to any conversation relating to the Clock car, for the reason that the defendant had been tried and acquitted of that charge. The court overruled this objection. There was no plea of former jeopardy introduced formally in the case, but as a part of his defense the accused offered the record of his indictment, trial and acquittal on the charge of larceny of the Clock car. The court refused to accept the record so tendered as evidence, to which action of the court the defendant excepted. The record so proffered and excluded disclosed that at the January, 1915, term of the Lorain county common pleas court the accused had been indicted, tried and acquitted of the charge of grand larceny for stealing the Clock automobile, and it was not disputed by the state that the automobile named in the latter indictment was the same car alleged to have been stolen under the common plan or scheme embraced in the evidence tendered by the state at the present trial.

Opinion, per JONES, J.

Mr. W. H. Boyd and Mr. G. A. Resek, for plaintiff in error.

Mr. C. F. Adams, prosecuting attorney; Mr. F. A. Stetson, assistant prosecuting attorney, and Mr. G. B. Findlay, for defendant in error.

JONES, J. As the larcenies of the Clock and Wherry cars, though committed at different periods, were consummated under a conspiracy or a common plan embodying the theft of both, it is now claimed for the accused that his acquittal of the charge of theft in the former case is conclusive upon the state as an "estoppel by way of res adjudicata," and that the state cannot now develop the criminal plan and theft of the Clock car upon the subsequent trial for the larceny of the Wherry car. In support of this proposition counsel for the plaintiff in error have cited a number of authorities. Among others they cite the two following cases as establishing the principle which they desire to apply in the instant case: Mitchell v. State, 140 Ala., 118, and Commonwealth v. Feldman, 131 Mass., 588.

At the outset counsel for the accused concede that their client cannot avail himself in this case of the constitutional guarantee of not being twice placed in jeopardy for the same offense. The thefts of the Clock and Wherry cars were distinct offenses, and evidence necessary to support the second indictment involving the larceny of the Wherry car would not necessarily have been sufficient to warrant a conviction for the larceny of the

Opinion, per JONES, J.

Clock car under the first indictment. The only protection vouchsafed to the accused in criminal cases is that he shall not be twice placed in jeopardy for the same offense. There is no guarantee, either by constitution or by statute, that evidence offered upon the trial of the accused for a different offense, of which he was convicted or acquitted, may not be offered to prove a distinct but related offense. If the contention of the accused should be upheld that the state is concluded by the verdict of acquittal for the larceny of the Clock car- its effect would be to allow an alleged adjudication of fact to be utilized as a guise for a plea of former jeopardy. It is urged by the accused that if he should be charged with committing a dozen specific offenses, growing out of a single conspiracy, the law should award him some protection on the trial of the twelfth offense, if he had theretofore been tried and found not guilty as to the first eleven. In answer to that it may be said e converso that if he were acquitted on the first trial for one of the offenses that acquittal would at least operate as a partial immunity for the accused in the trial of the other eleven cases. The operative effect of former adjudications are mutual, and it is difficult to conceive why, if an acquittal operates as an adjudication, a conviction could not be offered by the state to prove the conspiracy and theft as established and conclusive facts. To deny the state the right to prove distinct offenses as part of a conceived and deliberate plan or conspiracy to steal, rob or murder would be to grant the accused an immunity not contemplated either by our constitution or statute.

Opinion, per JONES, J.

Let us assume that an aider and abettor engages with another in a conspiracy to kill, and that pursuant to such scheme two men are assassinated, what logical or legal reason can there be for using the acquittal of the aider and abettor in one case as conclusive upon the state in a subsequent criminal case for a separate offense contemplated in the criminal plan? And especially is this in point where the evidence of conspiracy and theft relating to the Clock and Wherry cars was so intermingled that it was almost impossible to separate it. But why should a former acquittal be conclusive as an adjudication of the facts involved therein. upon a second trial for a separate and distinct offense resulting from the plan or scheme under which both offenses were committed? On the former trial the witnesses for the state may have. committed perjury resulting in such acquittal, or may have absented themselves from the state. The acquittal may have resulted from an erroneous charge, misconduct of counsel or jury, lack of proof upon a single material element, or from other causes. Can it reasonably be urged, either from the standpoint of law or good morals, that the state should be concluded by such an acquittal, or that it is in any wise estopped from marshaling its competent evidence upon a subsequent trial for another offense, proving a common scheme or plan to steal specified automobiles, followed, in fact, by the theft of each?

Where separate and distinct offenses are sought to be shown by the state as having some relation to the offense on trial, showing motive, scienter and

Opinion, per Jones, J.

the like, testimony tending to prove the offense charged is not rendered incompetent by reason of the fact that it also tends to prove such separate and distinct offenses. (Brown v. The State of Ohio, 26 Ohio St., 176.) This rule of competency is also applicable when such other offenses are the result of a common scheme or plan embracing the commission of two or more crimes, including the crime charged, and which are so related to each other that proof of one tends to establish the others. Tarbox v. The State, 38 Ohio St., 581; Jackson v. State, Id., 585, and Reed v. The State of Ohio, 15 Ohio, 217.

There may be cases in our criminal jurisprudence where a conviction may be utilized as res adjudicata of the issues involved and concluded by the verdict. Thus, where the state imposes a higher penalty for the commission of a second offense, the state may offer the first conviction as a conclusive fact on the second trial. So in indictments for perjury it has been held in some jurisdictions, though seriously questioned in others, that the prisoner may offer the record of his former acquittal on an issue to which such perjury relates. Neither can the state carve a single identical offense into two offenses and impose two punishments for one and the same offense. The state cannot blow hot and cold in criminal cases and occupy inconsistent attitudes by securing separate punishments for the same identical act, as was attempted in Griffith v. The State of Ohio, 93 Ohio St., 294, 298. There the defendant had been convicted at a former trial of the em