¶1But one question is deemed of sufficient importance for notice.
¶2Appellant was indicted for the theft of a certain horse, alleged to have belonged to Fabian Flores. That said horse was taken from the possession of, and was the property of, said Fabian Flores. Hpon this indictment he was placed upon trial, that is, the jury were sworn and defendant pleaded to the indictment, before a court of competent jurisdiction. Hpon discovering that Flores’s given name was not Fabian, the district attorney entered a nolle prosequi.
¶3Subsequently appellant was indicted for the theft of the same horse, it being alleged in said last indictment that the horse was taken from the possession and was the property of Antonio Flores. When placed upon trial upon this second indictment, defendant pleaded jeopardy, which plea was supported by the facts supra.
¶4Under the above facts, was the plea good? We must answer this question in the negative. (Bish. Cr. Law, vol. 1, 1020, 1021, 1027, 1049, 1051, 1052; Pennsylvania, v. Huffman, Addison, 140; Comm. v. Mortimer, 2 Va. Cas., 325; Hite v. The State, 9 Yerger, 357; People v. Warren, 1 Parker, 338; People v. Allen, id., 445.)
¶5The judgment is affirmed.
¶6Affirmed.