delivered the opinion of the court.

Appellant was indicted for unlawful cohabitation with his daughter, Emma Sims. On the trial, the proof showed that Emma Sims was his step-daughter, and not his daughter, and he was acquitted — the court instructing the jury, to acquit on account of the variance.

Afterward, appellant was indicted for the same act and offense, with Emma Sims, his step-daughter, and to this indictment he pleaded the former acquittal. The plea was held insufficient by the court and he was convicted and appealed, and assigns for error, the judgment of the court as to that plea.

As the acquittal on the first indictment resulted from a variance in the allegations of the indictment and the proof, the plea was not a bar to the second prosecution. If what was set out in the second indictment had been proved under the first, there could have been no conviction under the first, and, because this was so, the plea constituted no defense. 1 Bish. Cr. Law, § 1052; 1 Whart. Cr. Law, § 565 ; Code, § 2998.

Affirmed.