(after stating the facts). This is certainly a case of the first impression. We have been unable to find any case like it in the books on criminal law, and the learned and undefatiga-ble counsel for the defendant, admitted in the argument of the case, that they had been unable, in their researches, to find any case where such a practice had been adopted.
The mischief intended to be remedied by the Act of 1881, under which the defendant was indicted, was evidently to prevent the sale of intoxicating liquors, with their usual concomitants of drunkenness, broils and boisterous and riotous conduct, within five miles of Bethel Church, by which the religious worship in said church might be disturbed.
If the position contended for by the defendant’s counsel be correct, then if one person should be indicted for selling liquor at a particular place, mentioned in the indictment, and the place so designated is not more than three miles, or less, from the church, and the State, by the introduction of ignorant witnesses, fails to prove that the place is within five miles, or by the introduction of corrupt witnesses, it should be proved and found by the jury, that the place was beyond the distance of five miles, the person so indicted and acquitted, would be at liberty to sell liquor at the same place, “ ad libitum,” though the State might be able to prove beyond all question, that the place was within the prohibited district.
Such is undoubtedly the effect of the adjudication in this case, if his Honor rendered his judgment upon the special verdict, upon the ground, as was argued before us, that the State was precluded in the latter indictment, from showing that the offence was committed within the distance of five miles, when on the former indictment, it had been found by the jury, that the place was not within five miles.
His Honor committed no error in not rendering judgment against the defendant upon the finding of the jury, but his error consisted in not ordering a venire de novo, for a defect in the special verdict. For the jury failed to find that there was any *894judgment in the former indictment, which, from all the precedents we have seen, is-an essential ingredient in such verdicts. See Archbold’s Criminal Pleading, 89; Bishop on Criminal Proceedings, §576, where the forms of indictment, in such cases, contain the allegation, “as by the record more fully and at large appears, which judgment still remains in full force and effect, and not in the least reversed or made void.” See Hale’s Pleas of the Crown, vol. 2, page 243; where it is laid down, that a judgment in the former indictment must be averred.
But conceding that the special verdict may be a proper mode of taking advantage of a “former acquittal,” it certainly must find the same facts as would be necessary to be averred and proved, when that plea is pleaded, and it is well established, that to entitle the defendant to that plea, it is necessary that the crime charged be precisely the same, and that the former indictment, as well as the acquittal, was sufficient, Chit. Cr. L., 451,452. On the latter page, he proceeds to say: “As to the first of these requisites, the identity of the offence, if the crime charged in the former, and present prosecution, are so distinct, that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law, to say that the offences are so far the same, that an acquittal of the one, will be a bar to the prosecution of the other,” and in Arch. Cr. Plea, pp. 87, 88, it is said: “ When a man is indicted for an offence, and acquitted, he cannot afterwards be indicted for the same offence, provided the first indictment were such, that he could have been lawfully convicted on it.” The true test, says he, by which the question may be tried, whether such a plea is a sufficient bar in any particular case, is, whether the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first, and to illustrate, he says: “If one of the indictments appear to be for larceny of the goods of a person unknown, and the other for the larceny of the goods of I. N., the plea should also aver, that the person, so described as the person unknown, and I. N., were the same person, and not dif*895ferent; and so if the one indictcnent.be for the larceny of the goods of I. F., and the other for the goods of I. G., the two offences may be identified, by an averment that the said I. G. was as well known by the name of I. N. as I. G.” Why aver that the said I. G. was as well known by the name of I. N. as I. G. ? Because otherwise the indictment would not be precisely the same, and the defendant could not have been convicted under the former indictment, upon the evidence adduced in the latter. So in our. case, the indictments are not precisely the same, and the defendant could not possibly have been convicted on the indictment for selling liquor to Bethune, by proving that he had sold liquor to Wade. Wharton’s Precedents, §§1151 and 1152.
The counsel for the defence, relied on the case of State v. Nash, 86 N. C., 650; but the decision in that case, is in direct accordance with the authorities above cited. Judge RuffiN, speaking for the majority of the Court, held that the indictment must be for the same offence, both in law and in fact.
The defendant, if we understand his position, contended that inasmuch as in the former indictment against him, the jury found that the “Jim Green Place” was not within five miles of Bethel Church, the State was estopped thereby from insisting in this indictment, against the same person, for selling liquor at the same place, although the charge in this indictment was for selling to a different person. There might possibly be some force in the position, if the State was subject to the law of estoppel. But unfortunately for the contention of the counsel, it has been held in this State, that the doctrine of estoppel does not apply to the sovereign. Wallace v. Maxwell, 10 Ired., 110; Taylor v. Shuford, 4 Hawks, 132; Candler v. Lunsford, 4 D. & B., 407.
We are of the opinion that there was error. Let this opinion be certified to the Superior Court of Richmond county, that a venire de novo may be awarded.
Error. Reversed.