 | Kentucky. Court of Appeals, James Hughes, Achilles Sneed, Martin D. Hardin, George Minos Bibb, Alexander Keith Marshall, William Littell - 1912 - 966 pages
...prosecution is a bar to another Is whether, if what is set out in the second indictment had been proven under the first, there could have been a conviction....second cannot be maintained; when there could not, it can be. Idem 710 10. Cannot be Amended. — A defective pleading may be amended, but an indictment... | |
 | Joel Prentiss Bishop - 1858 - 1012 pages
...liable to be prosecuted on a new indictment in which the matter is truly alleged. The test is, whether, if what is set out in the second indictment had been proved at the trial under the first, there could legally have been a conviction; when there could, the second... | |
 | Illinois. Supreme Court - 1869 - 636 pages
...the same evidence from sustaining both ;" and, in the next section, he says: "The test is, whether, if what is set out in the second indictment had been proved at the trial under the first, there could have Opinion of the Court. legally been a conviction ; when... | |
 | 1900 - 632 pages
...offense. The test laid down by Bishop in that regard is stated as follows: "Whether, if that which is set out in the second indictment had been proved...second cannot be maintained ; when there could not, it can be." 1 Bish. Cr. Law (8th Ed.) § 1052, subd. 2. Where a defendant relies upon an adjudication... | |
 | 1901 - 1214 pages
...In Blsh. Cr. La\v, § 1053, the rule applicable in such cases is thus stated: "The test is whether, if what is set out in the second indictment had been...second cannot be maintained. When there could not, it can be." It follows, therefore, that the court below erred in disregarding the plea of former conviction,... | |
 | Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, Benjamin Harrison, Michael Crawford Kerr, James Buckley Black, Augustus Newton Martin, Francis Marion Dice, John Worth Kern, John Lewis Griffiths, Sidney Romelee Moon, Charles Frederick Remy - 1889 - 690 pages
...discussion of the rules to determine when the two offences are the same, says : " The test is, whether, if what is set out in the second indictment had been...have been a conviction ; when there could, the second can not be maintained ; when there could not, it can be." When tested by this rule the two offences... | |
 | Joel Prentiss Bishop - 1892 - 922 pages
...fact is truly stated. For this class of cases and numerous others, — 2. The Teat — is, whether, if what is set out in the second indictment had been...second cannot be maintained; when there could not, it can be.8 And — § 1053. 1. Generality of Test. — The case of variance is merely illustrative. In... | |
 | John Wilder May, Joseph Henry Beale - 1893 - 386 pages
...goods,2 or one acquitted of a crime as principal is indicted as accessory.3 The test is this: whether, if what is set out\ in the second indictment had been proved under the first, there could have been a conviction.4 § 121. Prior Conviction of less Degree of same Offence. — Where one is tried on an... | |
 | New York (State). Courts - 1898 - 868 pages
...imaginary. The test laid down by Mr. Bishop is as follows: " Whether if that which is set out in a second indictment had been proved under the first...second cannot be maintained: when there could not, it can be." 1 Bish. Or. Law (8th ed.\ § 1052, subd. 2. Where a defendant relies upon an adjudication... | |
 | Indiana. Appellate Court - 1904 - 802 pages
...State, 119 Ind. 501, the following is quoted with approval from a text writer: "The test is, •whether, if what is set out in the second indictment had been...have been a conviction ; when there could, the second can not be maintained; when there could not, it can be." See, also, Beyerline v. State, 147 Ind. 125;... | |
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The test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be. 
