The defendant was indicted, tried, and convicted of the crime of altering the mark of a hog and sentenced to two years at hard labor and appealed to this court.

He filed a plea of former conviction of larceny upon the same state of facts, to wit, in the cast of The State v. Joseph Colbert, just decided by us, No. 698.

To make good this plea it should have been made to appear that the hog which he was charged to have stolen in case No. 698 was the identical hog, the mark of which he is charged with altering — in this case — and that the taking in the one case, and the altering of mark in the other, were concurrent and as it were, simultaneous acts.

There is no bill of exception embodying the facts “ no statement of facts” made as such by the court. There is in the record the opinion delivered by the judge overruling the plea. But we do not understand this “ opinion” to be a “ statement of the facts ” which were shown on the trial of the plea. It does not even appear, only inferentially, that the record in 698 was offered, or that any other necessary fact to establish the defence was shown. It is plain that even if the record in 698 had been offered, there would have been necessary some other proof to show the identity of the hog in the one case, with the hog in the other case. In the one case the charge is “ stealing a hog the property of U. S. Tisdale.” In the other it *137is “ altering the mark oí a hog the property of U. S. Tisdale.” How could a court presume that both indictments referred to the same hog? or that the “taking” and the “altering” were simultaneous or concurrent acts. We know no law that could justify us in such a presumption. Even treating the opinion of the judge' as being a statement of facts, which we do not think we ought to do, still we do not find any distinct and direct statements from which we can infer the necessary facts.

The. judgment was affirmed, De Blanc and Egan, J. J. dissenting, but a rehearing having been asked and granted, the Court “ out of mercy to the accused, and to afford him an opportunity to remove the doubt whether the same facts gave rise io the two indictments,” remanded the case.