testimony she produced the child in evidence in court on the trial, and testified that defendant was its father, and that it was the result of these acts of sexual intercourse. At the close of the People's evidence, defendant's counsel moved that the prosecution be required to elect upon which transaction it would ask for a conviction. The request was refused, which made it incumbent on Reil to defend against and introduce evidence on all the transactions. At the close of all the evidence, the People elected to rely for a conviction upon the transaction testified to by her as having occurred on August 16, and the jury returned a verdict of acquittal upon the merits. She afterwards caused the arrest and trial of the defendant in the same court upon a charge of non-support of the same child and herself, upon the ground that he was its father, which under the statute, is a crime punishable by imprisonment in the penitentiary, and on this trial the jury returned a verdict of guilty. The demurrer to the plea of autrefois acquit, which was sustained, admitted all these facts, and the question is whether the first prosecution is a bar to the second. 2. The two alleged crimes are so clearly allied and dependent upon the same evidence, that an acquittal in the former bars the subsequent prosecution. Proof of the charge of being the father of the child depended upon the identical facts charged in the former case, and acquittal upon the merits was a bar to this prosecution. charging him with being the father of the child which it is alleged he neglected to support. The same ingredient is the basis of both charges. The crime of nonsupport is grounded upon the fact of its being his illegitimate child. To prove this, it would be necessary to prove on the trial at least one of the identical acts and facts of sexual intercourse of which he had at the previous trial been placed in jeopardy. The issue upon acquittal was upon the merits as to the main acts, and not upon the allegation of the female being over the age of 18 years. If the acquittal was upon the latter ground, so that he might still have been the father of the child, that should have been set up by an answer. To acquit on the former trial it was as necessary for the jury to find that he was not the father of the child as it would be necessary in the latter case to convict, for them to find that he was the father of the child. But it is said that while the facts are the same, the crimes are not, therefore defendant has not been in jeopardy of the crime charged. True, they are not the same in name, but in character and identity of evidence they are closely associated. When accused was tried and acquitted upon the merits of the charge of having sexual intercourse with the prosecutrix, he was placed in jeopardy upon all acts of sexual intercourse concerning which evidence was given at that trial, and he could not subsequently be convicted upon a charge of not supporting the child claimed to have been begotten at such time. The jury could not carve out of the evidence that he was the father of the child without proof of some identical act of sexual intercourse upon which he had been acquitted. In 12 Cyc. 288, it is said: "Doubtless an acquittal upon the charge of assault and battery would be a bar to a subsequent indictment for rape, where both charges are based on the same transaction." The point is made that the title of the Act: "To compel men to support their wives and children," (Laws 1911, p. 257), refers to legitimate children, and is not broad enough to include a criminal prosecution under it for the non-support of an illegitimate child and its moth er. Upon this contention the court expresses no opinion. The judgment is reversed and the cause remanded. Decision en banc. Reversed and remanded. Mr. JUSTICE TELLER specially concurring. Mr. JUSTICE SCOTT dissents. INDEX. ACCORD AND SATISFACTION. Payment of a Less Sum in Satisfaction of a Greater, which is not ACTIONS. Legal or Equitable-Plaintiff alleged that she had deposited with Defenses-Failure of Consideration-Where to an action on a AFFIDAVIT. See OATH. APPEAL AND ERROR. Where Error Lies-No objection having been made to the entry of 491. What May Be Assigned for Error-An order commiting the hus- APPEAL AND ERROR-Continued. Motion for a New Trial, is a condition precedent to the mainten Limitation-It is generally held that statutes which limit the time A writ of error sued out after the lapse of one year from the rendi- Practice-Tender of Record-Extension of Rule-Where the period Harmless Error-Action for a balance of wages. The plaintiff Interlocutory Order, not occasioning any injury to defeated party Verdict on Conflicting Evidence, under proper instructions, will So as to a decree in equity.-Borah v. Kempf, 201. Judgment Against the Weight of Evidence, will be reversed. The Record-Writings not set out in the record, are not considered. Abstract-Questions not presented by the printed abstract are not |