¶1The question of a former acquittal as a bar to a new indictment must always depend upon the substantial identity of the offenses charged, and on the validity in law of the first indictment. In the present case, it was admitted that the offense charged in the former indictment was the same now alleged. The former trial also appears of record to have been upon the indictment as produced and proved in the Court below. The evidence allowed to invalidate it did not go to show a subsequent alteration, but to prove an amendment made by the Prosecuting Attorney previous to the trial, without authority.
¶2That a defendant could object to allowing such an amendment to stand is very clear. But the effect of such an objection would necessarily be, if allowed, to leave the *168indictment in its original shape. And a defendant could, if he saw fit, abstain from raising such an objection, and therefore a prosecuting officer could not treat it as a nullity after proceeding to trial upon it. In the present case, as no amendment had been made to restore the indictment, to its original shape (supposing it.,to have been changed),, it must of necessity be presumed either that no such restoring amendment was asked, or that if asked it was refused.. The change alleged to have been made by the Prosecuting-Attorney was also such an amendment as the Court would undoubtedly have, allowed if applied for: Comp. L. § 6059. There can be no question but that the former trial was had upon the indictment as it now reads — as no evidence was offered tending to show the contrary. It is unnecessary therefore to consider the effect of any subsequent tampering with the record, because none is averred.
¶3The only question, therefore, which could properly arise, was whether the indictment, as it reads, was sufficient in law to base a good conviction upon. If so, an acquittal under it would be conclusive. It was the duty of the Court to charge the jury upon its sufficiency, as that is a mere question of law. A question of fact could not arise upon any such previous alteration as was set up by the 'prosecution, because, for the reasons alluded to, it was immaterial, and no evidence should have been permitted on the subject.
¶4New trial directed.