Seal v. State

Opinion.

The plea which was demurred to and held bad presents the question whether the actionable words charged in the indictment and those charged in the affidavit on which the defendant was convicted by a justice of the peace, constitute the same offense, and clearly they do not. They are notoriously variant, so that proof of the one would not sustain an' indictment for the other. The plea does not aver that all the words were spoken in one altercation, and that the defendant had been punished for part of them, and thus present the question suggested by counsel, whether a separate prosecution could be maintained for the different parts of the same altercation. The averment of the plea is that the two offenses are the same identical one, but looking to the Avords given, Ave find that they are different, and, therefore the plea Avas bad.

Judgment affirmed.