¶1 dissenting. The law applicable to this case is correctly stated in the quotation appearing in the majority opinion in the case of State v. McMinn, 34 Ark. 160, but, in my opinion, has been misapplied.
¶2 The only difference between the first and second in-formations in this case is the date of the alleged commission of the offense, but both dates are subsequent to the date of the filing of the first information. It, therefore, appears that appellant could have been convicted under the first information upon the same testimony on which he was convicted under the second information.
¶3 Now, of course, a man might commit the crime of rape more than once upon the same woman, but here the first information does not negative its commission at any time, other than the date alleged, as it might have done, and it would, therefore, have been proper and permissible to have convicted the appellant under the first information on any date prior to the date on which it was filed.
¶4 In the case of Binganan v. State, 181 Ark. 94, 24 S. W. 2d 969, Justice Kirby said that the test whether the plea of former jeopardy should be sustained is, “whether he (the appellant) had been put in jeopardy for the same offense.” Appellant has been, because he could have been convicted under the first information, on the same testimony upon which he was convicted in his trial upon the second information.
¶5 The case of Minnesota v. Healy, L. R. A. 1917D, 726, 161 N. W. 590, from which the majority quote, the Supreme Court of Minnesota quoted from one of its former opinions as follows : “In State v. Klugherz, 91 Minn. 406, 98 N. W. 99, 1 Ann. Cas. 307, this court said: ‘A plea of former acquittal is sufficient whenever it shows on its face that the second indictment is based upon the same . . . criminal act which was the basis of the indictment upon which the defendant was acquitted.’ ”
¶6 In the opinion in the Healy case, supra, it was said: “At the trial for the offense of January 16, the state could not convict by proving the act of July 16, and consequently did not need to prove the act of July 16, and in fact did not prove that act. Likewise at the trial for the offense of July 16, the state could not convict by proving the act of January 16, and did not need to prove that act, and proof thereof was admissible only as corroborative evidence. At each trial defendant was in jeopardy only as to one specific crime. It is true that at each trial, when the evidence disclosed that he had committed several similar criminal acts, the particular crime for which he was in jeopardy was uncertain until made certain by the election which the state was required to make; but this resulted from the rules of evidence which apply in such cases, not from an attempt to convict him af such trial if he had committed any one of two or more offenses. At neither trial could the jury have returned a verdict of guilty in case they found that defendant had not committed the specific crime pointed out, but had committed another similar crime. Our conclusion is that the acquittal of defendant for the offense of January 16, 1914, is not a bar to the present prosecution for the offense of July 16, 1914.”
¶7 Not so here. Appellant could have been convicted under the first information, upon the testimony offered at the trial upon the second information, inasmuch as the first information did not negative the commission of the crime upon any date subsequent to the date alleged in the first information.
¶8 In the case of Leonard v. State, 106 Ark. 453, 153 S. W. 591, cited by the majority, the defendant was convicted under an indictment which charged that he had illegally cohabited with one Pearl Gilbert, on June 28, 1912. He had formerly been convicted of the same offense committed with the same female, under an indictment returned November 4, 1911, so that a second conviction was for an offense committed subsequent to the date of the first indictment. In other words, he was convicted of one offense, and later was convicted for the same crime committed subsequent to the date of the first indictment. Of course, the plea of former conviction could not have been sustained in that case.
¶9 No doubt, appellant is guilty of the heinous crime for which he was convicted, but he might have been convicted under the first information had that trial proceeded to a verdict, but he should have been convicted conformably to established rules of law. Guilty as appellant, no doubt, is, it were better that he should escape punishment, rather than that he should be convicted in violation of established rules of law.
¶10 It is an ancient and sacred right that “no person, for the same offense, shall be twice put in jeopardy of life or liberty.” It is so provided in the Constitution of the United States, and in the constitution of every state in the union, and this protection should not be frittered away.
¶11 I, therefore, dissent, and am authorized to say that Justice Millwee concurs iu the views here expressed.